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Y 



MEMORIAL 



CALEB GUSHING, 



FROM THE 



City of Newburyport. 



" TO THE QUESTION, WHETHElt THE UNION IS WORTH HAVING, I REPLY THAT IT 

IS NOT ONLY TO BE CUERIiSHEU FOR ALL OF GOOD WHICH IT GIVES, BUT ALSO FOR ALL OF 
UNUTTERABLE ILL WHICH ITS DISSOLUTION INEVITABLY INVOLVES.''— Cus/lilig'l) addregg 

at the layinq of the corner stone of City Hall, Meiobiiryport, Jtdy 4, 1850. 




NEWBURYPORT : 

PUBLISHED BY ORDER OF THE CITY COUNCIL. 

MDCCCLXXIX. 






WILLIAM H. HXJSE & CO., PKINTEKS, 
NEWBURYPORT HERALD OFFICE. 






StP 12 '^^ 



CITY OF NEWBURYPORT. 



In Common Council. Octobor G, 1879. 

Ordered, The Ma3'or and Aldermen concurring, that a joint 
special committee, consisting of the Ma_yor and two members of 
the Common Council be, and hereby are, appointed to prepare and 
publish in a convenient form, a full report of the proceedings at the 
memorial services to be held in City Hall, Wednesday, Oct. 8, 1879, 
the cost of said publication to l)e charged to the account of Inci- 
dentals. 



In Common Council, October G, 1879. 
Adopted under a suspension of the rules, and Messrs. William 
E. McQuillen nnd Thomns IT. Bonrdmnn ;i|)pointed on the part of 
this board. 

Attest, 

Thomas E. Cutter. Clerk. 



In Board of Aldermen, October 6, 1879. 
Adopted in concurrence. Attest, 

GrBORGR H. Stevens, Citv Clerk. 



CITY OF NEWBURYPORT. 



In Commox Council, November 3, 1879. 

Resolved, That the thanks of the City Council are hereby ten- 
dered Hon. Cxeorge B. Loring, of Salem, Mass., for his able and 
appreciative eulogy of our late distinguished townsman, Hon. Caleb 
Gushing, on the occasion of the recent memorial service held in 
City Hall. Newburyport, Mass. 

Resolved, That the Mayor be. and hereby is, directed to request 
a copy of this eulogy for publication in pamphlet form, with the 
other proceedings of that occasion, and to ask that the original man- 
uscript may l)e placed in the hands of the directors of the Public 
Library, to be carefully preserved in the archives of that institu- 
tion. 



In Common Council, November 3. 1879. 
Passed . — Attest , 

William A. Davis, President. 



In Board of Aldermen, November 3, 1879. 

Passed in concurrence. — Attest, 

John J. Currier, Mayor. 



CONTENTS. 



Death ok Ualkb Cusuing, 
Action ok thu City Govkknmknt, 
Decorations and Invited Guests, 
Exercises at City Hall, 
Eulogy by Hon. (George B. Loring, 
Letters from Invited Guests, . 



9 
17 
21 
35 
33 
H3 



APPENDIX. 

BlOGRAI'lIIOAL SKET(!H, ...... 

PltOOEEDINGS OF TUE CUSIIING GUAltD AT NEWISURV TORT, 

IN THE General Court of Massachusetts, 

OF THE Massachusetts Historical Society, . 

of the Bench and Bar of the U. S. Supreme (-'ourt, 

OF the Massachusetts Association at Washington 

IN the Supreme Judicial Court at Salem, Mass., 

IN THE CiR(;uiT Court of the United States at Boston 





. Ill 




. 113 




. ik; 


r, 


120 


, 


. 138 




. 151 


TON, 


. I(i5 



DEATH OF CALEB GUSHING. 



Caleb Cushiistg died at his residence in 'New- 
buryport, on Thursday evening, January 2, 1879, in the 
seventy-ninth year of his age. This sad intelligence 
qnicldy spread over the country ; but nowhere was 
it received with more profound regret and sorrow 
than among his own townsmen. For several months 
previous to this event his naturally strong and vigor- 
ous constitution gave evidence of failing health and 
strength; and, although under the care of a physician, 
yet he had been able to attend to his professional 
engagements as usual, and at the time of his death had 
been confined to his house only a few days. 

Friday morning Mayor Smith called a special meet- 
ing of the Board of Aldermen to take action in rela- 
tion to this sorrowful event, and ordered the churcli 
bells in the city to be tolled one hour at noon on that 
day. At the special meeting of the Mayor and Alder- 
men, held Friday evening, the following resolutions 
were unanimously adojDted : 

Whereas, we have learned with feelings of the deepest sorrow 
of the sudden decease of our esteemed and eminent fellow-towns- 
2 



10 MK>rOKI.\r. OF CALEB OFSHIXG. 

m;in. Hon. t^nlob CusliiuiT, by which ovoiit. in the rrovidenoo of 
«.MHi. tho niUioii h;is lost ono. who lias for n long tonn of years 
tilled varvons positions of trust and responsibility in its g-overn- 
n\ent — the State, a partieipant in the duties of the legislative aud 
jndieiary departu\ents. — aud this eity. one who first oecupied the 
position of mayor at\d who has ever been ivgarded as the valued 
oiti/.ei\ and ilistitiguished statesiuan, therefore, 

l\KSOi.\ F.o. That we unite \vith the bereaved relatives in their 
sori\)w. and tender to them our deepest sympathy in their atlUetiou. 

Kksov.vko, That a eopy of these ivsolutious be sent to the family 
of the deivased. 

.Eksoi.vki>. That the City Clerk be requested to enter these ivso- 
lntiot\s on his iveoixls, and ftiruish a eopy of the same to the press 
fvH' publieation. 

Tito tintoi-al of "Mr. Cushuto- took place at Ms late 
restdonoo on lliiih street, ^Foiulay afternoon, the 
sixth day ot Januarv. The day was chilly and cold. 
The shy was overcast, and a light, newly fallen snow 
covered the ground. There was no pnhlic demon- 
stration beyond ihe lollittg of the chin'ch hells hy 
order of the City Councih and the draping of Essex 
HalK hy the Cnshing Gnard wlto occupied the huild- 
lug as an armory. 

The brief ai\d simph^ religions ser-s-ices were 
attended by his relatives and personal friends, hy the 
Mavor of the new tiiy government. Hon. John 
J. Currier, and several ex-Mayors; by tn embers of the 
bar. and manv clergymen, and prominenr citizens, 
and distinguished gentlemen from other cities and 

tONVltS. 

A single tloral tribute lay on the casket, the 
desiiiu being the sword of a general. The hilt was 
composed of purpk' and the guard of golden immor- 
telles : the blade of white carnation pinks, and the 
cdiTc ot white immortelles fringed with smilax. and a 



DEATH OP CALEB CUSTTTNG. 11 

star at the hilt. This was an olFcrin*:^ received from 
the Coshiiig Giiai'd. The silver plate, atlached to 
the black walnut casket which was covei'cd with a 
bhick broad-cloth having silk velvet mouldings, bore 
this inscription : 

CALEB CUSIIING. 
BOUN JANUARY 17, 1800. 
DIED .TANUAllY 2, 1879. 

Rev. Daniel T. Fiskc, 1). D., of ]Srewbury])oi't, con- 
ducted the services, and before reading selections 
from scripture, he said: 

" This hour and this service are for the living 
more than for the dead. A great man has indeed 
fallen among us; a man distinguished alike for his 
rare natural endowments, his extensive culture and 
erudition, and his varied public services; a man who 
has for half a century filled a large place in our 
country's history, has ably and honorably represented 
the nation abroad, and has filled many im[)ortant 
offices of civil trust and responsil)ility at home. The 
de[)arture of such a man calls for some public tribute 
of respect for his memory, and acknowledgment of 
the eminent services he has rendered our city, our 
commonwealth, our country and the world. Some 
fitting occasion and fitting lips will doubtless be 
found for the utterance of such a merited tribute, but 
to-day we come as mourners, to bear to its last rest- 
ing ])lace all that was mortal of a brother, a friend, a 
neighbor, a fellow-citizen. For support and comfort 
in this duty we need not the words of eulogy, but 
the words of God and the words of prayer. Let 
us then attend to the reading of the Holy Scriptui'cs, 
as they speak to our stricken hearts." 

He then read the following appropriate selections: 

Lord, thou hast been our dwelling place in all generations. Be- 
fore the mountains were brought forth, or ever thou hadst formed 



V2 ]srK]vroijT AT, ov c\iau\ gushing. 

(ho I'Mi'th Miul (ho worKl. i>vou ['vom ovorbistiui:; to ovorlasting, thou 
:irt Ciod. Thou tiiniost man to doslnu'tioii ; ami savost, Koturn yo 
c'hiKh\Mi of luiMi. Vov a thousand voars in thy sii;ht aiv but as yostor- 
day whiMi it is pasi. ;nul as a wati'h in tho niuht . * * * Tlio ilays 
ol" our yoars aro ihioo si'oiv and ton : and it" by reason of stivuii'lli 
ihi-y bo roursooii' \ oars, yot is thoir strougtU labor and sorrow : for it 
is soon out oit', and wo lly away. * * * So toaoh us to nuuibor 
our days, that wo u>a\ apply our hoarts unto wisdom. 

Tsnlms xo: I--1 and 10. TJ. 

Oauii^l ausworod and said. lUcssod be the name o( Ciod t"or ever 
.and over ; tor wisdom and miiiht are his ; and he ehangeth the times 
and the seasons: ho vomovoth kiuiis and setteth up kiuii's ; ho giv- 
eth wisdom unto the wise, and knowledge to then\ that know un- 
ilerstanding ; he revealeth the deep and seerot things; he knoweth 
what is in the darkness, and the light dwelloth with him. 1 thank 
thee, and in-aise thee, i.^ thou tiod of my fathers, who hast given 
nte wisdon\ and might, and hast made know n vmto nie now what we 
desired oi' thee : tor thou hast made know n unto us the king's mat- 
ter. Daniel ii : 'JO — 'io. 

Is there not an appointed time to man rioon earth? Are not his 
days also like those of a hireling: tlob vii : 1. 

Seeing his days are doterminoil. the number of his months arc 
with thee, thou hast ap|Hnnled his bounds that he eannot pass. 

dob xiv : o. 

It is appointed inito n\en onee to die. but at\er this the judgment. 

llebivws ix : -~. 

All the days of nn appoinio^l time will 1 wait, tillmy ehango eome. 

Job xiv : 14. 

Thou shah <.\>mo to thy grave in a t'ull age. like as a shoek of 
ooru i\^meth in in his season. Job v : 20. 

Theiv is no man that hath pow or over tiie spirit to ivt^iin the spir- 
it ; ueitl\er hath he power in the day of death : and theiv is no dis- 
ohai^v in that Avar. Kcvlosiastos viii : 8. 

Then shall the dust ivtuvu to the earth as it was ; and tho spii'it 
shall lYturn unto l^xl Avho gave it. Eeelesiastes xii: 7. 

1 was duu\b, 1 opouiHl not my mouth, because thou didst it. Ko- 
move thy stivke away fivi\i me : I am oousutued by the blow of 
thiuohaud. Psiilms xxxix : 9. 10. 

Like as a father pitieth his ehildivu, so the I-oi\i pitioth them 
that fear him. For he knoweth our tnmie : he ivmembeivth that 



DEATH OF CALEB CUSHINU. 13 

we are dust. As for man liis days are as grass ; as a Hower of the 
field, so lie flourlsheth. For the wind [jMssetli over it, and it is gone ; 
and the place thereof shall know it no more, liut the mere}' of the 
Lord is from (iverlasting to cvei'lasting upon lli(;m that fear him, 
and his rigliteousness unto children's children. 

Psalms ('iii : 1.') — 17. 

For the Lord will not cast off forever: But though he cause 
grief, yet will he have coini)assion according to tin; multitude! of his 
mercies. For Ik; dolh not alllict willingly, nor gri(!V(! the children 
of men. J/uruint.'itions iii : 31 — 33. 

Bl(;sse(l be God, even the; Fatluu' of our Lord .Icsus Christ, the 
Father of mercies, and the Ood of all c(;mfort ; Who comforteth 
us in all our tribulation, that we may be able to C(;mfort tiiem which 
are in any trouble, by the; comfort whercnvith we ourselves are com- 
forted of God. For as the sufferings of Christ abound in us, so 
our consolation also aboundeth l)y Christ, ii Corinthians 1 : 3 — 5. 

Jesus said unto her, I am the resurrection, and the life ; he that 
believeth in me, though he were dead, yet shidl he live;. 

John xi : 25. 

Let not yoin- heart Ix; trou1)led ; yc; ))(;lieve in God, believe also in 
me. Li my lather's Ikjusc are many miuisions ; if it w(!re not so I 
would have told you. I go to prepare a place for you. And if I go 
and prepare a place for you, I will come again and receive you unto 
myself; that where I am, there ye may be also. John xiv : 1 — 3. 

There; is one glory of the sun, and another gloi-y of the; moon, 
and {inoth(!r glory of the stiirs ; for one star differeth fr<jin another 
star in glory. So also is the resurrection of the dead. It is sown 
in corruption, it raised in incorruption : Jt is sown in dishonor, it 
is raised in glory; it is sown in weakness, it is raised in power; it 
is sown a natural body, it is raised a spiritual body. There is a 
natiu'al body, and there is a spiritual body. * * * And as we 
have l)orne the image of the earthy, we shall also bear the image of the 
heavenly. Now this I say, brethren, that flesh and blood cannot in- 
herit the kingdom of God : neither doth corruption inherit incor- 
ruption. Lchold 1 show you a mystery; We shall not all sleep, 
but we shall all be changcsd, in a moment, in the twinkling of an eye, 
at the last trump ; for the trumpet shall sound, and the dead shall 
be raised incorruptible, and we shall be changed. For this corrupt- 
ible must put on incorruption, and this mortal must put on immor- 
tality. So when this corruptible shall have put on incorruption, 



14 MEMORIAL OP CAIiEB GUSHING. 

and this mortal shall have put on immortality, then shall be brought to 
pass the saying that is written, Death is swallowed up in victory. O 
death, where is thy sting? O grave, where is th}' victory? The 
sting of death is sin, and the strength of sin is the law. But 
thanks be to God, which giveth us the victor}', through our Lord Je- 
sus Christ. 1 Corinthians xv : 41 — 44 and 49 — 57. 

A brief and fervent prayei* closed the religious ser- 
vices at the house. 

A long line of cari'iages, filled with relatives and 
fi'iends, followed the remains to Oak Hill Cemetery, 
where they were temporarily deposited. They have 
since been removed to the iSTew Burial Ground on 
Hill street, where they now I'est by the side of his 
wife, who died many years ago. The simple marble 
monument that marks his grave bears the following 
inscription: 

IN MEMORY OF 

CALEB CUSHING, 

son of john n. and lydia dow cushing, 

born in salisbury, 

January 17th, 1800; 

died in n e w b u r y p o r t, 

January 2, 1879. 



MEMOEIAL SERVICES. 



ACTION OF THE CITY GOYERNMENT. 



Monday morning, the sixth day of January, — the 
funeral of Mr. Gushing having been announced for 
the afternoon of the same day,— the members of 
the new city government assembled to take the oath 
of office. Mayor Currier in his inaugural address, 
referring to the death of Caleb Cushing, said : 

"Prompted by the thoughts which this occasion sug- 
gests, we cannot forget that a solemn and impressive 
burial service will be read to-day over the lifeless re- 
mains of one of our citizens, distinguished and hon- 
ored alike in the State and nation, who, as the first 
Mayor of ^ewburyport, deserves especial and honor- 
able mention here. 

While this is neither the time nor the place to por- 
tray the life and character of Caleb Cushing, whose 
name and fame have penetrated to distant climes, 
and whose great ability and rare scholarship are 
known and acknowledged throughout the length and 
breadth of our own land, yet it is eminently just and 
proper that his great public services to the nation, 
and to this city, should be held in grateful remem- 
brance by us ; and I trust that, at an early day, some 
one, competent and qualified to perform the task, will 
be selected by the City Council to give expression,in 
an appropriate memorial service, to the great respect 
and esteem we have for the memory of our fellow 



18 MEMORIAL OF CALEB GUSHING. 

townsman, — the vscholar, the jurist, the orator, and 
the statesman." 

Immediately after tlie organization of the City 
Couneil the following order was introduced and 
unanimously adopted by both branches of the City 
Government: 

In Boaki> of Aldekmex, Jamiaiy 6. 1879. 
Okdekei), The Coimnon Council ooucurring, that his Honor the 
]\layor bo and herohv is authorized and instrneted to cause the bells 
of the various churches in this city to he tolled from quarter-past 
three to quarter-past four o'clock p. ni. during the funeral ceremo- 
nies of the late Hon. Caleb Cushing, the lirst Mayor of this cit}'. 
Ix BoARP OF Aldermen, January' 6, 1879. 
Adopted. — Attest, 

Geo. H. Stevens, City Clerk. 

Ix CoMMox Council, Januar}- G, 1879. 
Ado})ted in concurrence. 
Attest, 

Thomas ¥j. Cutter, Clerk. 

At an adjourned meeting of the City Council held 
at half-past seven o'clock on the evening of the same 
day, the following order was adopted on motion of 
Alderman Ayers: 

In Board of Aldkrmex, Januarv 6, 1879. 
Okdkrfd, The Common Council concurring, that so much of the 
IMayor's address as relates to a proposed memorial service in honor 
of the late Caleb Cushing be referred to a special committee con- 
sisting of the Mayor and two Aldermen on the part of this board, 
and three members of the Couuuon Council ; and that said com- 
mittee be authorized to make the necessary arrangements and re- 
port at a future meeting of the City Council. 

Ix Board of Aldermex, January 6. 1879. 
Adopteil, and Alderman Ayers and Evans appointed on the 
part of the Board of Aldermen. 
Attest, 

George II. Stevens, City Clerk. 



ACTION OP CITY GOVERNMENT. 19 

In Common Council, January 6, 1879. 
Adopted in coucurrence, and Messrs. Greele}', Huse and 
Johnson appointed on the part of this hoard. 
Attest, 

Thos. E. Cutter, Clerk. 

At a meeting of the City Government, held Sept- 
ember first, this special committee made the following 
report, which was accepted and the accompanying 
order adopted: 

The committee on Memorial Service to whom was referred that por- 
tion of the Mayor's address relating- to the proposed public services 
in commemoration of the life and character of the late Hon. Caleb 
Cushing, have duly considered the matter, and beg leave to submit 
the accompanying report : 

The extra session of Congress, extending late into the sunnner, 
requiring the presence in AVashington of Hon. George B. Loring, 
who had consented to deliver the address on the occasion of the 
proposed memorial service, compelled your committee to defer the 
exercises until Wednesday, October 8, 1879, and they, therefore, 
in order to complete the arrangements necessary to carry out the 
programme successfully, would recommend the passage of the ac- 
companying order. 

John J. Currier, Chairman. 

Ordered, The Mayor and Aldermen concurring, that the com- 
mittee on memorial service in commemoration of the late Hon. 
Caleb Cushing be and hereby are authorized to make the necessary 
arrangements for the proposed pubhc exercises in City Hall, on 
Wednesday, October 8, 1879, and that the expenses incurred in 
carrying out the programme adopted by the committee, not to exceed 
the sum of three hundred dollars, shall be charged to the account of 

incidentals. 

In Common Council, September 1, 1879. 
Adopted under a suspension of rules. 

Attest, Thos. E. Cutter, Clerk. 

In Board of Aldermen, September 1, 1879. 
Adopted in concurrence. 

Attest, 

George H. Stevens, City Clerk. 



20 MEMORIAL OF CALEB CUSHmG. 

The coininitteo proceeded forthwith to make the 
necessary arrangements for the memorial service. 
Among- those olHcially invited, in behalf of the City 
Council, to attend the exercises at City Hall, were the 
fohowing: 

His Excellency the Governor of Massachusetts, and 
llis Honor the Lieutenant-Governor; Judges of the 
Supreme Judicial Court of Massachusetts; Speaker 
of the Massachusetts House of Representatives; State 
Senators from the Fourth and Fifth Essex Districts; 
Attorney General of the United States; Hon. William 
M. Evarts, Secretary of State, and Ex-Secretary Hon. 
Hamilton Fisli; past and present members of Con- 
o-ress from the Sixth Massachusetts District: Mayors 
of the cities in Essex County; Selectmen of Salis- 
bury; Selectmen of Xewbury; OtKccrs of the Massa- 
chusetts Historical Society; Officers of the Essex Bar 
Association; l^rcsidout of Harvard College; College 
Classmates and other men of note in public and 
private life who were personal friends and acquaiut- 
ances of Mr. Cushing. 






DECOEATIONS AND INVITED GUESTS. 



Wednesday, the eighth day of October, will long be 
remembered as one of the finest of the autumnal 
season. The sky was clear and serene, and the 
warmth of Summer once more returned for a day. It 
threw a gleam of cheerfulness over the nnpressive 
ceremonies of this occasion. 

The City Hall, in which the exercises were held, was 
ai)i)ropriately dressed, the drapery being under the 
supervision of George Nelson Beales of Boston ami 
the lloral decoration under the direction ol Claude B. 
Gardner of West Kewbury. Back of the rostrum 
the entire wall was hung with black and white, re- 
lieved only by the customary drooping flags, while 
acrainst the centre of the walls, back of the stage, was 
a^'canopy of sombre black, inside of which and on a 
pedestal representing a fluted column, was a busi: of 
Mr Cushing executed by Mr. David M. French of 
Kewburyport. Under the canopy and above the bust 
was the following inscription: 

CALEB GUSHING. 

BoiiN January 17, 1800. 
Died Jakuauy 2, 1879. 

The sides of the hall were also draped with heavy 
folds of black and white cloth, while curtains of 



22 MEMORIAL OF CALEB GUSHING. 

the same tcxtiiiH^ and colors liinig from each win- 
dow. The l)alc()n3' was covered with the same 
material, and festoons of mourning- extended from the 
centre of the ceiling to the sides, front and rear of the 
hall. In front of the balcony was this motto, in 
white letters on black cloth : 

"Mex are wk, and must grieve when even the shape 
Oi- that wiucH once was great is passed away." 

On a background of bhick with a border of autumn 
leaves surmounted by al)ouquetof the same, in white 
letters, were the Ibllowiug mottoes, one between each 

window, "SCUOLAK — SOLDIEK — statesman — LINGU- 
IST — LAWYEK — JUDGE — LEGISLA'rOK — DIPLOMATIST." 

On each window sill Avas a large cluster of varie- 
gated autumn foliage of brilliant hue and I'are beauty, 
which, Avith the large bouquets of Howers in vases on 
the rostrum, greatly relieved tlu' otherwise sombre 
appearance of the hall. 

An oil i)ainting of Mr. Cashing, a recent gift from 
Mr. James AVorinley, of A\ ashington, to the city of 
Kewburyport, was placed in front of the speakers' 
desk, in lull view of the audience. 

Upon the ])latform Avcre the following named gen- 
tlemen : 

JUSTICE OF THE SUPREIME COURT OF MASSACHUSETTS. 

Hon. William C. Endicott, 8ale7n. 

PAST AND PRESENT MEMBERS OF CONGRESS FROM THE 
SIXTH MASSACHUSETTS DISTRICT. 

Hon. Benjamin F. Butler; Hon. Charles P. Thomp- 
son; Hon. George B. Loring. 



DECORATION^S AND INVITED GUESTS. 23 

STATE SENATORS. 

Hon. George W. Gate, Senator of the 4tli Essex 
District. 

MAYORS OE NEIGHBORING CITIES. 

Hon. Henry K. Oliver, Salem; Hon. Nathan S. 
Kimball, Haverhill; and Hon. William H. Sise, Ports- 
moutli. 

SELECTMEN OE SALISBURY. 

■William H. B. Gurrier, Esq. ; Joseph M. Eaton, Esq. 

SELECTMEN OE NEWBURY. 

:N'athaniel Dole, Esq; Joseph N. Eolfe, Esq.; Hor- 
ace F. Longfellow, Esq. 

OFFICERS AND MEMBERS OF ESSEX BAR ASSOCIATION. 

Hon. Kathan W. Hazen, Andover; Hon. Eben 
F. Stone, Mwburyport ; Hon. Henry Garter, Haver- 
hill; Hon. Daniel Sannclers, Lawrence; Leverett S. 
Tuckerman, Esq., Salem. 

BX-MAYORS OF NEWBURYPORT. 

Hon. George W. Jackman, jr. ; Hon. Albert Gur- 
rier; Hon. Eben F. Stone; Hon. Warren Gurrier; 
Hon. Benjamin F.Atkinson; Hon. Jonathan Smith. 

OFFICERS AND MEMBERS OF THE MASSACHUSETTS 
HISTORICAL SOCIETY. 

George Dexter, A. M., Recording Secretary; 
Gharles W. Tuttle, A. M., of the Executive Commit- 
tee of the Council; Stephen Salisbury, LL D., Kev. 
William S. Bartlet, A. M., and William G. Endicott, 
A. B., Members. 



24 MEMORIAL OF CALEB GUSHING. 

COLLEGE CLASSMATES. 

Dr. John Oriic Green, Lowell; Kev. liobert F. 
AYalcult, Boston; ITon. Stei)hen Salisbury, LL. D., 
Worcester; Hon. Samuel E. Sewell, Boston. 

OTIIKIl GUESTS. 

Hon. Jeremiah S. Black, of Pamsylvania, Attorney 
General wider Fresulent Buchcinan; Major l>en: 
Perley Poore, West JVewlmry; Colonel Isaac Hull 
AVrigiil, Boston; Thomas W. Pierce, Esq., To2js- 
field; General W. W. IT. Davis, editor Democrat, 
JJoylestown, Ba.; Frank W. Ilackett, Esq., Borts- 
movth; William P. Sargent, Esq., Boston; Patten 
Sargent, Esq., Merrlmac; liev. AVilliam A¥. TsTewell, 
]]). D., New York; Alex. Porter Morse, Esq., WasJt- 
w(/to)i; General Josiah B. Kinsman; Lawrence B. 
Cushing, Esq., Hon. Pichard 8. Spoftbrd; Hon. E. 
Moody Boynton; flames Parton, Esq.; Kev. William 
W. ISTewell, jr.; Eev. Edward L. Drown; Rev. Sam- 
uel J. Spalding, D. D. 

THE CITY GOVERNMENT OP NEWBURYPORT. 

Hon. John J. Currier, Mayor ; Albert Cheevei-, John 
Woodwell, William II. Noyes, Charles L. Ayers, 
Thomas Mackinney, John P. Evans, Aldermen. 

William B. Porter, Kufus Adams, ]N'athaniel Gree- 
ley, Isaac Poor, Thomas Iluse, Jr., Robert G. Sar- 
gent, William A. Davis, Willard J. Hale, Thomas H. 
Boardman, Alvin D. Russell, Arthur C. Richardson, 
Horace L. Balch, Daniel W. Gate, William R. John- 
son, Jose]:>h Hall, William E. McQuillen, Joseph S. 
Bailey, William H. Whitmore, Jr., Councilmen. 

John IS". Pike, Esq., City Solicitor; George H. 
Stevens, City Clerk; George W. Piper, City Treas- 
urer; Thomas E. Cutter, Clerk of Common Council. 



EXERCISES AT CITY HALL. 



After a march and aria from Mozart's "Magic 
Flute," by the Germania Orchestra, of Boston, the 
Mayor, Hon. John J. Carrier, said: 

Ladies and Oentlemen : — We come here to-day 
to pay a tribute of respect to a distinguished towns- 
man and friend. I ask youi* silent and reverend at- 
tention while prayer is offered by Rev. Mr. ISTewell, 
of this city. 

Rev. William W. Kewell, jr., pastor of the Old 
South church, then invoked the Divine blessing in 
substantially the following words: 

Almighty God, unto whom all nations pray, we 
come unto Thee in prayer. 

We thank Thee that Thou hast taught us to memo- 
rialize all true worth, and to cherish the memory of 
those who were worthy. 

We thank Thee for the many noble men whom 
Thou hast raised up for the founding and perpetuating 
of our beloved Republic, men whose names are dear 



26 MEMORIAL OP CALEB CUSHLN^G. 

to evcrj true American. We thank Thee that Thou 
hast put it into the liearts of these present to recall 
the life of one of our citizens, whose talents are rec- 
ognized throughout the civilized globe. We thank 
Thee for those intellectual powers with which Thou 
hast gifted him, and for his long life of untiring 
industry, for the advancement of civilization. 

We thank Thee that Thou didst use him to the 
making of our country more respected by other 
peoples — adding to our national honor, influence and 
prospei'ity. 

And we pi-ay Thee, O Lord, that Thou remember 
us this day, as we not only rejoice in his service, but 
mourn his death. Remember the more immediate 
circle of relatives who miss him in the family and in 
the lionie. O Thou tender Shepherd, comfort them 
in theii- affliction, and sanctify to them this trial. May 
this loss but draw them unto Thee for the richer o'ain 
of Thy gi-ace to bless and to save. We pray for 
these before Thee, gathered here to-day out of respect 
or affection for the illustrious dead. 

Remember hun who is to address us; may his]utter- 
ances be a kindly reminding of the dead, and a 
healthy quickening of the living. 

Many of us are far advanced in life, associates with 
him we mourn. Grant unto such Thy sustaining love 
midst the increasing infirmities of old age. Forgive 
their sins, overrule for good their mistakes, make 
bright their deeds of sincerity and love, and prepare 



EXERCISES AT CITY HALL. 27 

them for the summons that shall call them to Thyself. 
Remember also, we beseech Thee, the young 
present with us; may they be stimulated by the 
example of untiring study recalled to us to-day. May 
they be inspired to a truly great life, going beyond m 
mdustry, in intelligence, in nobility, in true Christian 
patriotism. 

We pray for our city, that Thou wouldst make up 
to us for our loss, raising up in our midst many great 
and good. 

We pray for our Kation. Remember the President 
of these United States and his Cabinet, and all who 
make and execute our laws. May they rule in thy 
fear, and according to Thy law. Bless all who hold 
places of honor and trust. Q'lalify thum for then- 
positions. Strengthen them against temptation. May 
their love of country be broader and deeper than love 
of self, and may the love of God be the ruhng passion 
of their heart, soul, mind and strength. 

Bless in especial manner our youth. May the 
young of America be truly wise, men of unwavering 
principle, and pure character. Above all, make them 
in the highest sense christian. May they remember 
that no generous deed is lost, no Christ-like life is 
vain, that that life is most successful which is most 
unselfish, most heartily consecrated to the good of 
man, and to the honor of God. 

We pray for the world. Make oin- nation more 
and more an honor and a beneftictor throughout the 



28 MEMORIAL OF CALEB GUSHING. 

earth. Rule Thou among the nations. Unite them 
ill closer bonds of intercourse and fraternity. Bring 
peace instead of war, prosperity mstead of distress, 
and right out of all wrong. Hasten the day when all 
shall accept and follow Jesus Christ as their King, 
their Savior and their God. And make the liyes of onr 
race eternally memorable in all that Thou wilt most 
honor and bless. 

We ask all in Thy name, and for the sake 
of T^hy divine Son, who has taught us to pray — 
'' Our Father, which art in Heaven, hallowed be Thy 
name. Thy kingdom come. Thy will be done in earth 
as it is in Heaven. Give us this day our daily bread; 
and forgive us oui" debts as we forgive our debtoi"s. 
And lead us not into temptation, but deliver u^ from 
evil. For Thine is the kingdom, and the power, and 
the glory, Ibrcver. Amen." 

A select chorus under the direction of Prof. L. A. 
Torrens of Boston, then rendered "Cast thy Bui-den 
on the Lord." by Mendelssohn. The singers compos- 
ing the choir were as follows : 

Soprano? —Julia ]M. Wells, Mrs. ^Minnie S. Balcli, Emma J. 
Flauders, Mrs. llattie Dodge, Florence E. Lake, Lizzie Carr, ]Mrs. 
Carrie A. Potter, Mrs. Martha Isl. Torrens. 

Altos — Gertie L. Cook. Clara Ballon, Bertie Perkins, Florence 
L. Choate, Hannah Maria ^Nlorse, ]Mrs. Lizzie Cheney, Mrs. Eliza 
M. Meader, Mrs. Lizzie ILile, Sarah McCusker, JNlrs. Eunice 
Adams, Mrs. Belle P. Winslow. 

Tenous — George H. Stevens, David True, John L. Pearson, 
John H. Carter, Edward S. Knight, AVilliamIL Sumner, PIdward A. 
Hale, Henrv W. Ballon. 



EXERCISES AT CITT HALL. 29 

Bassos — Theodore Castelhun, George W. Goodwin, John A. May- 
nard, Charles R. Todd, Dr. Charles F. Dodge, James W. Hervey, 
Charles II. Meader, Joseph W. Evans, William Tibl)etts. 

Pianist — Mrs. Isadore Cheney. 



Eev. Edward L. Drown, rector of St. Paul's Church, 
^ewburyport, then read the following selections of 
scj'ipture : 



The days of our years are threescore years and ten ; and if by 
reason of strength they be fourscore years, yet is their strength 
labor and sorrow, for it is soon cut off, and we fly away. 

Psalm xe : 10. 

For what is your life? it is even a vapor, that appeareth for a lit- 
tle time and then vanisheth away. James iv : 14. 

Then shall the dust return to the eartli as it was ; and the spirit 
shall return unto God who gave it. Ecclesiastes xii : 7. 

For all flesh is as grass, and all the glory of man as the flower of 
grass. The grass withereth, and the flower thereof falleth away. 

I Peter i: 24. 

And thou shalt go to thy fathers in peace ; thou shalt be 1)uried 
in a good old age. Genesis xv : 15. 

Thou shalt come to thy grave in a full age, like as a shock of 
corn eometh in in his season. Job v : 26. 

Thou shalt rise up befoi-e the hoary head, and honor the face of the 
old man, and fear thy God; I am the Lord. Leviticus xix : 32. 

With the ancient is wisdom ; and in length of da3'-s understand- 
ij^o-. Job xii : 12. 

Happy is the man that findeth wisdom, and the man that getteth 
understanding. Proverbs iii : 13. 

Length of days is in her right hand ; and in her left riches and 
honor. Proverbs iii : 16. 

Her ways are ways of pleasantness and all her paths are peace. 

Proverbs iii : 17. 

She is a tree of life to them that lay hold upon her ; and happy 
is every one that retaineth her. Proverbs iii : 18. 

Exalt her and she shall promote thee : She shall bring thee to 
honor when thou dost embrace her. Proverbs iv : 8. 



30 MEMORIAL or CALEB GUSHING. 

She shall give to thine head an ornament of grace ; a crown of 
glory shall she deliver to thee. Proverbs iv : 9. 

For wisdom is better than rubies ; and all the things that may be 
desired are not to be compared to it. Proverbs iii : 11. 

Riches and honor are with me ; yea, duralile riches and righteous- 
ness. Proverbs viii : 18. 

A wise man is strong ; yea, a man of knowledge iucreaseth 
strength. Proverbs xxiv : 5. 

Wisdom strengtheneth the wise more than ten mighty men which 
are in the city. Ecelesiastes vii : 19. 

Where no counsel is, the i)eoi)le fall; but in the multitude of 
counsellors there is safety. Proverl)s xi : 14. 

For He was wiser than all men ; * * and. his fame was in all 
the nations round al)Out. I Kings iv : 31. 

The thouglits of the diligent tend only to plenteousness ; but of 
every one that is hasty only to want. Proverl)s xxi : 5. 

Seest tliou a m;in diligent in his business? he shall stand before 
kings ; he shall not stand before mean men. Proverbs xxii : 29. 

And as we have l)orne the image of the earthy, we shall also bear 
the image of tlie heavenly. 1 Corinthians xv : 49. 

And I heard a voice from heaven saying unto me. Write, blessed 
are the dead which die in the Lord from henceforth ; yea, saith the 
Spirit, that they may rest from their lal)ors. and their works do fol- 
low them. Kevelalion xiv : 13. 
Wherefore comfort one another with these words. 

1 Thessalonians iv : 18. 



After a romanza from the opera of " Kobert," by 
Meyerbeer, by the orchestra, the Mayor said : 

Ladles and Gentlemen: — An accompHshed son of 
ISTewburyport,— the Hon. George Lunt, of Scitu- 
ate, who is unable to attend here to-day,— was for 
many years the friend and associate of Caleb Cush- 
hing, and has kindly contributed the following sonnet 
for this occasion. 



EXERCISES AT CITY HALL. 31 

CALEB GUSHING. 

A SONNET. 

Few men more versatile have played their part 

On the world's shifting stage ; not even he 
Whom glorious Dryden, with consummate art, 

Portrayed as "all mankind's epitome ! " 
Jurist profound, and in all'airs of State 

Of counsel apt ; a tried diplomatist, 
Spain, China, England, felt his power insist 

Upon his country's cause ; in strong debate 
His fervid spirit led the fier}- van ; 

This Scholar versed in tongues, this earnest man 
By studious toil who won the title "Great," 

A stormy course for Fame's proud guerdon ran ; 
Through years not oft vouchsafed to human kind 
Still grandly towered the strength of Cushing's mind. 



The following- original hymn by Rev. George D. 
Wildes D. D. of Kiverdale, J^ew York City, was then 
sung by the choir : 

Around the gathered harvest sheaves, 

The low autumnal sun 
A wreath of golden glor}^ weaves ; 

The toiler's meed is won ! 

Fitting, if late, the hour while here, 

— Memorial of his fame — 
'Mid scenes he loved, or green, or sere, 

We speak one honored name. 

For the full measure of his age 

In grand historic years ; 
For gifts of strength, for counsel sage 

'Mid battling hopes and fears ; 

For noblest word in high debate ; 

For patriot heart and hand ; 
For trusted skill when reeled the state, 

In watch and ward to stand ; 



32 T*rEMOKIAL OP CALEB GUSHING. 

For thos(\ thy pfts. nil Givor! now, 
— ITonor and length of days — 

ITcro in thy pvesenoe, Lord ! we bow ; 
For these be thine the praise. 



Mayor Currier, advancing to the front of the plat- 
form, then said: 

Ladie.^ and Gentlemen :~^YhQ\\ a great man pass- 
es from this Hfe to the life beyond, there is a recog- 
nized i)ro])riety and fitness in the piil)lic commemora- 
tion of his name and fame. 

It is not, therefore, snrprising that "N'ewbnryport 
shonld seek, in its ofiicial capacity, an occasion like 
this to give appropriate expression to the respect in 
which she holds one of her most illnstrions citizens. 
As a scholar, statesman, lawyer, judge and diplomat- 
ist, he attained great distinction and renown. His ac- 
knowledged ability and Avonderful intellectual energy- 
added new lustre and importance to the pnblic sta- 
tions he was called to fill. Failing, perhaps, to at- 
tain the lull measure of success that his capacity, ex- 
tensive culture and vast acquirements merited, never- 
theless his biographer depicting his life, at some 
future day, will find it closely interwoven with the 
political history of this Eepublic for the last half 
centnry. 

It is indeed a matter of congratulation that his fel- 
low citizens — neighbors and friends — have gathered 
here, from all the varied walks in life, to offer a testi- 
monial to his greatness and appropriately acknowledge 



EXERCISES AT CITY HAI.L. 33 

the conspicuous public service which he has rendered 
to this city, state and nation. 

We meet to hear the story of his life told by one 
competent and qualified to perform the task; to listen 
to words — wisely selected and fitly spoken — that por- 
tray the light and shade, the strength and weakness, 
of that busy life; to hear, from the lips of one who 
knew him well, the dispassionate verdict that history 
will repeat to future generations. 

As the delineator of this sketch of the character 
and career of Caleb Gushing, dr-awn from a careful 
study of his life; as the faithful historian of this im- 
pressive occasion, I have the honor to introduce to 
you Hon. George B. Loring. 

When the applause that greeted this announce- 
ment had subsided, Mr. Loring proceeded to deliver 
an appreciative eulogy, which occupied one hour and 
thirty-five minutes in its delivery, and was listened 
to throughout with earnest attention, and heartily 
applauded at its close. 

EULOGY BY HON. GEOEGE B. LOEING. 

Mr. Mayor, Ladies and Gentlemen: — A great and 
busy and restless life is ended. He who occupied here 
a conspicuous position as scholar, jurist, statesman, 
orator, author, diplomatist^ legislator, magistrate, in 
all the varieties of public service, for two generations 
of men, is gone. The name which for more than half a 

century gave this his native town a high place among 

5 



34 MEMORIAL OF CALEB GUSHING. 

the spots toward Avhich the American people turned 
in every great crisis in all that time, is now withdrawn 
from the ilhistrious roll of active service, and is re- 
corded in the pa^es of the history of the past. The 
record which a powerful intellect could make for itself 
and for the community out of which it sprang, is 
completed. A varied and remarkable career has ter- 
minated; and we have assembled here to pay a trib- 
ute of respect to the memory of him who contributed 
most liberally, during a long life, to the conflicting in- 
intellectual endeavor, by wdiich the American people 
have wrought out thus far the great social and civil 
problem submitted to their hands. 

It is now nearly four score years since Caleb 
CusHiNa was born into this community, and for near- 
ly three score years he was the foremost representa- 
tive man found in it, — so strong in all his faculties 
and characteristics that he seemed to mould it to him- 
self He inherited great powers from his ancestors, 
and he was surrounded in his childhood and youth 
by intense activity and energy in all the walks of 
life; but as he went on he set his seal on every force 
about him, and shaped society much more than socie- 
ty shaped him. So intimately connected Avith his 
birthplace was he, so attached was he to it, that even 
while pressed upon by a heavy weight of care, and 
loaded with the honors of most important olficial sta- 
tion, he sought here relief under disappointment, and 
brought his successes and honors hither as a tribute 
to a community which he never forgot, and on which 



EXEKOISES AT CITY HALL. 35 

he could always rely for appreciation and support. He 
knew himself not as of Massachusetts or Essex coun- 
ty, not as of congress or the courts, but as Caleb 
CusHmG of Newburyport, the home from which he 
received his intense sensibility and his great capacity, 
the home in which he was surrounded by great ex- 
amples, and where his ambition first dawned and his 
career began. Whatever respect has been paid to 
his memory, therefore, whether by the highest judi- 
cial tribunal of this country or of this commonwealth, 
or by his fellow-citizens assembled where his greatest 
acts as jurist and statesman were accomplished, it is 
especially appropi'iate that this municipality should 
make official record of his large public service, and 
provide an enduring memorial of his name. For it 
should be remembered of him that he stands as a tvpe 
of those active forces which gave this town and coun- 
ty a preeminent place in the history of the time when 
he advanced from childhood to youth, and entered 
upon the work which his predecessors had laid down. 
All about him he found great incentives to apply his 
vigorous powers to incessant toil. His father was an 
industrious, enterprising, successful merchant, filled 
with the resolute determination and earnest purpose 
of the old colonial clergy from whom he descended. 
There was hardly a spot, moreover, in this rising re- 
public more distinguished for intellectual power in 
the beginning of this century than this where we are 
now assembled. The county of Essex had long been 
remarkable for the devotion of its leading men to the 



36 MEMORIAL or CALEB GUSHING. 

cause of education, and its schools and well-endowed 
academies gave evidence on every band of the devo- 
tion of its people to sound learning. Among the 
statesmen of that time, Tristram Dalton, a citizen of 
this town, the first and one of the ablest of the 
United States senators from Massachusetts^ was en- 
o-ai>-ed in bis honorable public service. The name of 
Theophilus Parsons, the great lawyer of his time, the 
teacher of John Quincy Adams and Rufus King, the 
first and most distinguished chief-justice of Massa- 
chusetts, was familiar to old and young here, and the 
pious home of his father stood not far from this spot 
to remind that generation, as it does ours, of what the 
clergy of those days did for tbeii' country. Tyng and 
Dana were engaged in their high careers as theolo- 
"•ians and divines. It was Master Walsh, the distin- 
guished mathematician and author, who taught young 
Gushing the rudiments of that learning which became 
so profound and universal. John Lowell, also the 
son of a clergyman, the sound lawyer, first judge of 
the United States circuit court in Massachusetts ap- 
pointed by Washington, the ancestor of lawyers and 
jurists whom this state has delighted to honor, of 
merchants who have laid the solid foundations of the 
wealth of our metropolis, of manufacturers who have 
established and built up vast industries here, of clergy- 
men who have blessed, and one poet at least who has 
inspired our people,— John Lowell was honored and 
loved as a son of I^ewburyport. William Bartlet, 
the able and successful merchant and the generous 



EXERCISES AT CITY HALL. 37 

patron of letters, was in the midst of his prosperous 
career. And as time went on the sohd legal attain- 
ments of Simon Greenleaf, and the defiant philan- 
thropy ol Garrison, illustrated the mental activity 
and vigor of the sons of this town. Among the 
great men of the county, Abbott and Stuail and 
Woods rose to the highest ranks as theologians; 
Story and Choate and Rantoul achieved the loftiest 
eminence in statesmanship and jurisprudence; 
Prescott among historians won a foremost place as a 
strong and graceful writer and a careful investigator, 
with a character beloved by all who knew him; in 
the realms of fiction Hawthorne explored the myster- 
ies of the human heart with unequalled power and 
style unmatched; and Bow ditch and Pierce took 
their stand with LeYerrier and LaPlace as expoun- 
ders of the great mysteries of celestial and terrestrial 
mathematics. Born in a community of which these 
were the representative men, Caleb Gushing de- 
voted his remarkable powers to the work of compre- 
hending, at least, the eminence which each of these 
great minds had attained. With Stuart he could dis- 
cuss the dogmas of theology. With Story he could 
enlarge upon the whole structure of jurisprudence. 
With Ghoate he could advance to the perfect work of 
a great lawyer and advocate. By the side of 
Pantoul he stood a powerful legislator and debater 
With a profound and comprehensive knowledge ot 
universal history, he was especially familiar with that 
chapter which Prescott unfolded with such fascma- 



38 MEMORIAL OF CALEB GUSHING. 

ting power. He rejoiced in all that the poet and 
novelist can do to beautify and gild this life, and 
reveal its secrets, with Hawthorne. I have heard 
him discuss physiology and embryology with the 
learning of a professoi-; and discourse upon ethnolo- 
gy as if he had devoted his whole life to the study of 
the I'aces of men. From the time when at the age of 
seventeen he was gi'aduated at Harvard and spent a 
year there as tutor, he stored his mind w^ith every 
variety of knowledge, with an assiduity rarely equall- 
ed, and with such success that when he passed away 
he left the reputation of being one of the most learned 
linguists in our land: lie had won the admiration of 
the most eminent chief justice of our day as a jurist: 
he was authority with every administration from 
Pierce's to Grant's on international law: he was rec- 
ognized as an admirable classical and belles-lettres 
scholar: his speeches in legislative debate were 
learned and exhaustive: his occasional addresses 
were elequent and comprehensive; and his power as 
a writer led the literary world to regret deeply that 
he left behind him so few books, and such circum- 
scribed authorship. ]S^ot endowed with creative fac- 
ulties, or with vivid imagination, his mind possessed 
immense power of acquisition; and he filled his store- 
house of knowledge with such infinite variety that he 
was often undecided where he should have been posi- 
tive, speculative where he should have been practical, 
leai-ned where he should have been wise, a compre- 
hensive teacher when he should have been a sound 



EXERCISES AT CITY HALL. 39 

counsellor, obedient to argument where he should 
have been governed by an nnpnlse. His life was de- 
voted not so much to iinlty as diversity of thought, 
and throughout his entire career he subordinated all 
his faculties to the control of his mind, and turned for 
his own guidance to that great learning, which he 
not only used for his own purposes, but which he 
bestowed with liberal and lavish hand on all who de- 
sired to use it in the management of public affairs. 
It cannot be said of him that he was devoted to one 
idea, that he was a doctrinaire, an idealogist, a theo- 
rist in any sense. He fell upon an age when the 
work of preserving and constructing had just com- 
menced, and as he entered public life he found his 
country engaged more earnestly in perfecting and 
developing a system of government already estab- 
lished than in changing or reforming it. The politi- 
cal period in which he turned his mind to political 
consideration is known in our history as the "Era of 
good feeling." And standing by the side of 
Webster and Clay in their tremendous antagonism to 
the powerful ruling party of that day, he found him- 
self engaged in a contest for the adjustment of ques- 
tions relating to the practical working of the govern- 
ment, and not for the support of a theory of state and 
society upon the establishment of which the storm of 
a revolution might burst upon the land. For this 
service his mind was especially qualified, both by 
nature and by education. He brought to the work 
the training of which I have spoken, an instinctive 



40 MEMORIAL or CALEB GUSHING. 

love of all those principles of government which had 
been declared by the most earnest colonists, and 
which had formed at last the great object secnred by 
the war of the Revolution. His yonthful impulses 
were broad and liberal and humane. But what most 
strongly attracted his attention was that structure of 
government wliich had been wrought out by the 
framers of the constitution, and whicli was the finest 
embodiment of the doctrines of equality and justice 
in a civil system whose corner-stone was the wisdom 
of the law. He accepted the abstract views of the 
fathers of the republic as established beyond question 
or debate — but he turned his vast mental powers to 
the investigation of all matters incident to the work- 
ing of that constitutional government which had been 
created bv the stron^-est intellectual forces of that 
age which witnessed the birth of American nationali- 
t}^ Having set forth in this path he never aban- 
doned it. He believed in popular right, in social and 
civil equality — but he still believed more strongly in 
that government which was founded on equality and 
right, and considering the foundation safe, he devoted 
himself to the pei'fection of the superstructure which 
had secured his respect and admiration. If he ever 
doubted the capacity of the people for self govern- 
ment, it was when they took into their own hands the 
intei'pretation of the constitution and the laws which 
he himself deemed entirely competent to secure every 
po]mlar ])i-ivilege, and the destruction of which 
involved the downfall of all popular government on 



EXEKCISES AT (;JTY HALL. 41 

earth. As we examine his imblic life we shall find 
that this sentiment and this conviction never forsook 
him. Pilled with prooiind respect for the fruit of 
one revolution, he started back with dismay at the 
contemplation of another. At all times ready to 
uphold the government, defiant of all opposition to 
his efforts for the aggrandizement of the republic, 
violently and perhaps nni'casonably impatient of all 
opposition when the supremacy of the constitution 
was involved, he seemed to forget his eai-ly impulses 
and associations, to count the assertions and argu- 
ments of the past as nothing, to look upon no party 
tie as binding, and upon consistency, as usually 
understood, to be worthy of no consideration what- 
ever. 

HIS PUBLIC CAREER. 

It was in 1825, while yet a youth of most attractive 
appearance, as we are told, with the ruddy glow of 
health upon his cheek, with features of peculiar beau- 
ty, with a voice " as musical as is Apollo's lute," with 
a manly and vigorous form, with stores of knowledge 
at his command, and with most persuasive phrase, 
that he entered upon his public career — a career 
which in one form or another he never abandoned. 
From that moment, when he entered the legislature 
of Massachusetts, with the exception of a few years 
spent in foreign travel, he trod steadily the path 
which then opened before him. A successful lawyer, 
and an able and eloquent advocate, he withdrew 

8 



42 MEMORIAL OF CALEB GUSHING. 

somewhat from intimate association with the fraterni- 
ty to which he bck)nged, and rose rapidly to a fore- 
most position among the statesmen of his time. A 
schohn* of gi'eat accomphshments, an anthor whose 
power as an essayist was ah-eady recognized, he left 
the Avalks of literature never to retnrn. The great 
civil and governmental questions of the day, the pop- 
nlar issnes, the strnggle of politics, the excitement of 
debate, the storms of the forum, the association of 
those engaged in high affairs of state, seemed to 
possess an irresistible charm to his mind, and unend- 
ing promise to his ambition. Constituted and trained 
as his mind was, he entered upon this service either 
too early or too late. Had he taken part in the form- 
ation of the constitution, his services would have been 
invaluable, and his name would have ranked high 
among those who founded and shaped our govern- 
ment. Had his career ended with the iirst era of 
constitutional interpretation, he would have reached 
the serene and lofty height of recognized power. 
Had his mind been turned in his youth to those ques- 
tions of reform upon the solution of which the fate of 
our republic has hung, he would have gone on un- 
trammeled by either the education or the association 
of the past. But plunged as he was into the contro- 
versies which were inevitable as one era— the era for 
which he was born— closed, and another era opened, 
his political career was uncertain, unequal and stormy 
—his motives were often misunderstood— his actions 
were often misrepresented. He reached high politi- 



EXERCISES AT CITY HALL. 43 

cal distinction, but not that height which most 
thoroughly satisfies. And while he achieved great 
success, he met with adverse shocks which would 
have destroyed the strength and quenched the 
courage of many an aspirant of less self-control and 
confidence. But through all the changes of fortune, 
thei'e is found a certain mental tenacity, a certain 
directness of reasoning which must be admired even 
by those who have been embittered against him by 
political controversies and differences. At the close 
of President Lincoln's administration, when I was 
urging him to give his support to that great magis- 
trate for a second term, and asked him if he did not 
recognize the skill and power he and his advisers had 
manifested in cari-ying on the war and establishing a 
financial system for the country, he replied that he 
did indeed, and, " So far as the financial system is 
concerned,'' said he, " I stood by Webster in advo- 
cacy of it'nearly thirty years ago : of course I ap- 
prove it.'' Turn to his opinion as Attorney General 
on foreign enlistments, and you will find that in 1855 
he announced the doctrine upon which he won the 
Alabama claims — and that in advocating those 
claims he had only to turn back to the law which he 
laid down a quarter of a century before. When as 
Attorney General he declared in considering the 
Crampton controversy that an act of Parliament 
could not control the world, and that a government 
is responsible to other governments for defective leg- 
islation, he foreshadowed the American argument at 



44 MEMORIAL OF CALEB GUSHING. 

Geneva. As member of the committee on foreign 
affairs while in Congress he advocated continually 
those views which he afterwards applied in his 
mission to Chinn, and still later as minister to Spain. 
He constantly urged upon the House, while a mem- 
ber, the iinportance of determined national assertion 
against all foreign powers, and of strong military or- 
ganization to preserve the peace at home. Is it sur- 
prising then that he offered his services in the Mexi- 
can war, growing out of the addition of Texas to the 
territory of tlie United States, a war fought, as he 
believed, foi" the aggrandizement of his country; and 
that lie sought an opportunity to risk hh life for the 
Union, when the integrity of the government was 
threatened by civil war? He believed in the power 
of the Republic, as I have said: in her financial 
honor; in her future growth and prosperity; in the 
constitutional law which she had laid down and her 
great lawyers had expounded; in the importance of 
well-organized government for the welfare of man- 
kind. Controlled by this sentiment, he paused not to 
consider the cause of difficulty and threatened dan- 
ger — to remove the cause was his first desire, to 
remove the danger was his first impulse. And if he 
abandoned party for what he considered the cause of 
his whole country, and observed the precept of Plato, 
that they who rule the state should see that no part 
receives advantage to the neglect of the other — " ut, 
qaceciinque agunt totum corpus republicae curenU 
nedum partem allquam tuentur, reliquas deserant; " if 



EXERCISES AT CITT HALL. 45 

he resigned his early views, and broke up his later 
associations, from a conviction that discord and sedi- 
tion are liable to follow that circumscribed patriotism 
which fails to consider the entire country — '''■qui 
autenn parti cimum consulant, j>arfe?7i negliyuyd, rem 
pernwiosissimam in civitatem inducunt, seditionem 
atque discordiarn,^'' — why should he be condemned 
as inconsistent and inconstant? There are many 
hei-e, I doubt not, who have not forgotten his elo- 
quent words spoken here on his return from his four 
years' service as Attorney General of the United 
States under the administration of President Pierce. 
*' It is said also," he exclaimed, "that other hyper- 
critical persons impute to me tolerance for men of 
different shades of opinion regarding the political 
theories of the moment. Be it so. On the high 
road of public life are strewn broadcast the miserable 
fragments of party doctrines, shattered by overstrain, 
like the dead mules and broken down was^ons in the 
track of an advancing or retreating army. Theo- 
rems of mathematical precision are good in books of 
geometry, but not in the conduct of great affairs. 
Men of action are the masters, not the slaves of doc- 
trine. AVhat the world needs, demands, and will 
have, is more practical statesmanship, and less of big- 
oted exclusiveness of doctrines." 

It is by this standard that we must judge him. He 
could not be bound by party, for his advice was 
sought by conflicting administrations; his attain- 
ments were too valuable to be rejected even by those 



46 MEMOETAL OF CMAIB GUSHING. 

who (lilloivd iVoiu him in opinion. His rainiliarity 
with iho ])oliticMl inovcnuMils of all ibo leading nations 
oTllu' world, his know U'dge of llu'ir rulers and their 
allnirs, and his pi-oround learning in international h-nv, 
all eniinenilv (lualilird him to l>e what he really was 
— till' diplomatic counsellor of the country for a 
(juarter (^i' a centui'v, when our foreign relations were 
complicated In war, and hv the adjustments of peace. 
When profound knowliHlge as lawyer or hngnist oi' 
statesman was required, lie could respond readih' and 
satisfactorilv . And so at last lie stood alone among 
the rival and contmiding parties of the day, finding- 
ample sci'vice for his vast ])owers at the capital of the 
repuhlic. and receiving from his own townsmen that 
su|)i)ort which thev were alwavs |)roud to give, and 
which was accuratelv desc-riluMl In one among you 
who said: "The fathers who lirst voted for him have 
passed; their sons have come and g(me, and then' 
gi-andchildren are now the actors; hut they have all 
heen the same to him." 



TTTS rOXGRESSTOXAT. SKliVICE. 

In view oi" the unusual, |H'culiar, and remarkable 
|)ul)lic service of the great man whose career we 
have nu't to counnemorate, 1 should l)e doing injustice 
to him and to you, his townsmen and friends, did I 
not cousidcr somewhat elal)orately and earefnlly his 
conrsc in his givat spheres of duty as legislator, 
jurist, and statesman. I have already referred to his 



EXERCISES AT CITY HALL. 47 

devotion to the system of government under whicli 
he lived, and to his constant desire for the power 
and aggrandizement of the repul)lic as a member of 
the family of nations. So controlling was this sen- 
timent with him that he felt, as if it were a personal 
insult, any reflection upon the civil organization of 
our land — upon the majesty of the government. 
He served this government with a sense of respect 
and allegiance, as a good servant serves a good 
master. He was scrupulously courteous to those Avho 
held official station — to the chief magistrate of the na- 
tion or the state, to the senator, to his representative in 
congress, because in his eye they stood for the gov- 
ernment. 'No supercilious or contemptuous or even 
trifling, word ever fell from his lips, or was recorded 
by his pen, in rei)ly to a popular call on him as a public 
servant. At home and abroad he was sensitive with 
regard to his country's honor; harsh and severe, per- 
haps, in dealing with those who differed from him as 
to where that honor lay. As a legislator he was 
ahvays ready to contribute to the power of the state, 
and to defend those measures and doctrines which 
had their foundation in the spirit of American enter- 
prise and American law. In this service he was 
never a partizan, even when recognizing his political 
obligations to the party which placed him in power. 
In his seat he was attentive, wjitchful, alert; in his 
committee room he was diligent, usefnl and constant. 
His presence was always welcome in the legislature 
of his native state, in which body he served honor- 



48 MEMOKIAL OF CALEB GUSHING. 

ablv and (>tliciciitly at various times, from 1825 to 
1851). His foiioTossicmal career commenced Decem- 
ber 7th, IS'S'k in the first session of the twenty-fom*th 
conii'ress. I lis colleag'ues from tiie state of Massa- 
chusetts Avere Abbott I^awrence, Stephen C. Phillips, 
Levi Lincoln, George Grenuell, George 'N. Briggs, 
ANilliam H. Calhoun, flohn Keed, John Quincy 
Adams, Sanuiel Hoar, and ]S^. B. Borden — a dis- 
tinguished delegation, in which he was the youngest 
and one of the most conspicuous members. He 
entered promptly and N'igorously upon his work. He 
was placed upon the committee on foreign affairs, and 
distinguished himself for his able advocacy of a 
treaty with Mexico, fixing the boundary between that 
country and the LMted States. He sat in that body 
as a representative of Massachusetts institutions, 
Massachusetts doctrines, traditions, and faith. His 
first remarkable utterance there was for the rio-ht of 
petition, which was at that time assailed; and in a 
speech made January 25th, 183G, before he was even 
familiar with the system of the House, he made an 
appeal which illustrates most admirably the senti- 
ments of his heart, the movements of his mind, and 
his manner of expression, at that early period of his 
life. " Men of Virginia," said he, " countr^anen of 
Washington, of Patrick Henry, of Jefterson and of 
Madison, will you be true to your constitutional faith? 
^len of Xew York, will yon ride over the principles 
of the democracy you profess? Men of the West, 
can you prove recreant to the spirit of independence 



EXERCISES AT CITY HALL. 49 

which carried you beyond the mountains? Men of 
^ew England, I hold you to the doctrines of liberty 
which you inherit from your Puritan forefathers, and 
if this House is to be scared l^y whatever influences 
from its duty to receive and hear the petitions of the 
people, then I shall send my voice beyond the walls 
of this capitol for redress. To the people, I say, your 
liberties are in danger; they whom you have chosen 
to be your representatives are untrue to their trust; 
come you to the rescue, for the vindication of your 
right of petition. To you I appeal, to you, the peo- 
ple who sent us here, whose agents we are, to whom 
wv shall return to render a reckoning of our steward- 
ship, and who are the true and only sovereigns in this 
republic." 

Hear what he said on the Indian question, imme- 
diately after his defence of the right of petition, 
nearly half a century ago; and may our country 
listen now to the words then spoken by that young- 
representative from Massachusetts — woi-ds now ven- 
erable with years and coming from his honored 
grave. " Every consideration of policy," said he, 
" calls upon us to conciliate, if we may, the Indians 
within our jurisdiction. •«■ ■^- * Dictates of duty 
in this matter are not less imperative than argmnents 
of policy. The Indians are in our hands. They 
have been sunk to what they are, if not by us, yet 
through us. We have assumed the guardianship of 
them, and have pledged ourselves by stipulation after 
stipulation to watch over their welfare. I invoke the 



50 MEMOIJIAL OK CALKB CUSTHNG. 

failli of treaties. I M|)i)eMl to the lionor of the nation. 
I (k'lnand of its ti'ulh and justice, if there be any 
sense of ri<i,-ht in civili/ed t-onnnnnities, that we act 
deeidedlv and i)ronii)tIv in the execution of some 
well-di<>-ested plan for tlie l)enelit ol' the Indians sub- 
ject to oni- authoi'ity. Let us not si)eak to them only 
as concpuM-ors and in ihc hin,i>-ua<>-e of relentless rigor, 
but to the vi<;-or that shall overawe and control, con- 
join the justice that shall connnand respect, and the 
clemency that shall conciliate affection." 

Called upon soon after to discnss the qnestions of 
banking- and the cnrrency, he uttered views which are 
so a])i)ropriate to these times that I record them here 
as if it were his living voice si)eaking' to us in this 
hour of our fmaneial trial. After enlarging" on the 
danger of paper money, and the inii)ossibility of a 
purely metallic currency, and declaring that "' Bank 
pa|)er convei'tible into specie on demand is the medi- 
um between excessive gold currency on the one hand 
and mere pa})er money on the other," he said, " It 
would carry me too lar to go into an examination of 
the relations that l)aidvs hold to the business of the 
connnunity. The fact is apparent. If yon conple this 
with what I have i)r()ved of their composition and 
ownership, I think you will perceive that you cannot 
overthrow the bank cor])()rati()ns of the states with- 
out disturbing ])retty eifectnally the whole connnu- 
nity. They are inwrought with its entire fabric. It 
is this circumstance, and not the power of banks, 
which has occasioned the suspension of specie pay- 



EXERCISES AT CITY HALL. 



51 



ments, to take place throughout the land, from one end 
of it to the other, without any conflict or collision be- 
tween the banks and the people. By destroying tiie 
banks, then, you will revolutionize the property of 
the country; not that of the rich only or chiefly, but 
that of the farmer, the mariner, the mechanic, the 
manufacturer; and in revolutionizing the property of 
ah these you ivvolutionize society. Such an upheav- 
mg of society from top to bottom may be very con- 
venient to the idle and the bad, the needy adventurers 
who would like to have all the good things of this 
world thrown into common stock for a general 
scramble every Saturday night, because they are 
either above or ])eneath a life of labor. But how 
would it suit the virtuous and frugal, who compose 
the great body of the [)cople of this country, and who 
see themselves gradually rising into competency and 
respectability by means of honest mdustry and enter- 

prise : 

To these views he faithfully adhered in succeeding 
congresses, and on May 21st, 1810, in opposing the 
Independent Treasury bill, he charged upon it that it 
was a deliberjite attempt to " unbank the banks;" a 
scheme to create "bank princes," instead of corpora- 
tions ; an effort to engraft the moneyed institutions of 
the old monarchical world upon our own, to increase 
executive patronage, and to open the way to fraud 
and peculation. He foreshadowed that financial 
policy which enabled us to conduct an expensive and 



52 MEM()KIAL OV CALEB CUSTTTNG. 

i^xhnustiiii;- war, and to sustain our credit iu time of 
|)ea(*e. 

On Uie 10th oC Ai)nl, ISIkS, be spoke for the en- 
couraLieiiuMit ol" llu' llien i-apidly o-rowing West, and 
iiidicatrd his palriofu' (U'sii-e lo earrv oui" institutions 
into Ihi' iMitire (ei-riloiT subject (o our jurisdiction. 
Iu tliscussiuo- tlu' Cuiuheilaud road l)iil, at tliat time, 
and supportiug il on liie ground that as a great land- 
holder the United States have the same |)ower which 
anv pri\ali' hmdliolder lias to ma1ce school reserva- 
tions and road resiM'\ ations, and to contribnte to local 
iniprovenu'uts, thus augmeutiug tlu' value of the land 
and promoting sale and settlement, he said, " Sir, it 
may be, it nuist ])v that the relative political c<mse- 
quence of the .Vtlantic States will be duninished by 
the prosj)(.'rit\ of the \\'est. lie it so. It is the 
natural result ol' the development of tlu' resonrces of 
the country, foreseen by the lathers and admitted by 
them as it should be by us — to raise uj) rich and ])0]> 
rdous states beyond the mountains, dividing with us 
the naiional powei*. But I cannot sulfer myself to 
regard this tpiestion in the limited view of mere sec- 
tional interests. It iuNolves tlu^ greater good of the 
whole nation, the good of the human race. The sur- 
plus population ol" the .Vtlantic states will coutinne as 
it has done, to sow itself broadcast over the valley of 
the ]Mississip[)i. Are they not still our own posterity, 
our bnUhers, oui' blood, and Americans like our- 
selves? 1 rejoice in the spectacle ol' the Anglo- 



EXERCISES AT CITY HALL. 53 

American stock extending itself into the heart of the 
continent, taking the phice of the wild beasts and 
roaming savages of the far West, advancing with, as 
it were, a preordination of inevital^le progress, hke 
the sun moving westerly in th(^ heavens^ or the 
ascending tide on the seashore; or in tlie striking 
language of a foreign traveller, as a deluge of civil- 
ized meii rising unabatedly and driven onward by the 
hand of God. I rejoice to see growing up in the 
West a prosperous and cultivated comnninity, daugh- 
ter of the East — Mater jmlclirce filia imlclirior. Tf, 
as may well ha])])en, the expanding states of the 
West be luted to reacli the remote shores of the 
Pacific itself, I desire to see them carry along with 
them the hiws, education, and social impi-ovement 
which belong to the older states, so as to combine dis- 
tant peoples by the ties of mutual good will and bene- 
ficial intercourse, as well as of blood, thus overcoming 
the oljstacles of time and space, and worthily fulfill- 
ing the great destiny reserved for this exemplar 
American Republic." As I look back and remember 
that forty years ago this was ])ro])hecy, and that in 
that time the population of the United States has 
more than doubled, that fifteen states have been 
added to the Union, that the civilization of the East 
has really reached the Pacific shores to rival the At- 
lantic slopes in all the arts and enterprises of life, and 
that the remotest regions of our country are bound 
together not by a common destiny and common blood 
alone, but by the most immediate and rapid communi- 



Hi 



MKMOKIAL OV OALKH C'USlllNCi, 



^.;,^•,on — M ^lowtli wiru'll seems rnhiiloiis to ns who 
h:\\c sorii it — 1 rnnnol ;ulinire loo much \hv voiilli- 
I'lil |>i'o|)lu"t'u' si;it('sm;ni wlio prcMlicU'd the nslonish- 
inu' ri'^iih :\\u\ |tre|):iroil tlu' minds ol" his coimlrvmon 
to iT;ih/.r nnd |>i-o\ide lor it. On flime Dhli, 1S)>S, 
\\itlihi> mind stiU liUed witli \ isions oC (lie rising;- 
ure.itiu'ss ol" liis coiuitiN, niul eompn-hoiurmi;- llio |><»|>- 
uhir ikMunnds :\\\d necossilies ol' :i ^I'owini;- ropiihlic, 
hi' made a stroni;- and rIo(iiU'nt speech in laNOf ol' 
^rantinu- Pi-eemplion l\ii;hts, warnini;- the countfv 
aiAain^t the ii'ceuidai'ities and c-onli'o\ iTsies allendini;' 
the nianaiiement and sali' of the lands by tlu' i;-o\tM'n- 
menl, and a^■ainst the sc'ctional ri\ah-ies which musl 
sprini;" from tiieir ilistrihulion, and claimini;" I'or the 
actual siMtlei's, for lhosi,> hardy men who wei'e to 
Iniild up the empiiv \\v had pi'i'dicted, I'oi' lhosi> who 
were to convert llie wilderni^ss into I'eiiile lields and 
make it the abode ol" ci\ ili/alion and I'rei'dom, eveiy 
encourauement the i^overnmiMit could bestow by 
ojH'nin^" the latuls to tiieir occupation and use. 

Slartinii' I'ortli with these enlarged \ iews ol'tlie pol- 
icy whic-h the ^-overmuent should |)ursue on all the 
imporlaul iiuesiions {o which 1 have ri'l'erred, he was 
ready at all times to upliold tlu> honor ol' that i;-o\'eru- 
ment, and to lil't up his voice in behall" of all means 
by which the j)eople could be inl'oiMned and elevated. 
In a healed iK'bale on the li\>asnry note ([ueslion in 
^[arch, IS 10, he declared that "he was nol disposed 
to willdu)ld I'fom the i^ovei'mnenl the means pi-opei' 



EXERCISES AT CITY If ALL. 55 

and iK^oes.sary U) cnn-y on its ojjei'ution.s, but he would 
hold the administi-ation i-e.si)onsil>le foj- the disburse- 
ment of sue]) means as were placed at its disposal for 
that purjiosc " — i-cfo;i-nizin;^ his patriotie duty to his 
country, evr-ii while oppo^in;^- the pni'ty in jiowci' to 
the extent of pi-cdielii);^- a ehang-e of administratif>ii 
nnd coii^ii-at iilatiii;^' the eountry on it. At all times 
he ui-;^('d lihcral and j^i-og'rcssive measures on the 
House, and vvaiiicfl his associates there against oppos- 
ing- the advancing spii-it of the American ]>eo]jle. He 
protested a;^ainst th(; famous Atherton I'esolutions, as 
a violation of those rights which an American holds 
most dear, ile urged repeatedly the doctrine tlntt a 
trr-asuiy note was as )niich a loan a> a l)r)iid with a 
specified i-ate of interest, and should \nt issued in the 
foi'in of a draft on specie oi- (jthcr means in the; pos- 
session of the government at the time it is emitted. 

Thus far Caij:!', (.'usiiixt; had, as a Whig member 
of congress IVom Massachusetts, found himself iji a 
minority in the house. J*ut the electirjn of ^HiO had 
taken ])lace, the most sweeping political i-evolution 
ever known in this country, and on February 12th, 
1841, he was apj)ointed on a committee of the House 
to notify General Hariison of his election as Presi- 
dent of th(i United States. His party was nf>w in 
power in e\ery branch of the government, and he 
stood before the country with the brilliant congres- 
sional i-ecoi'd I have just delineated, and with a repu- 
tation as a debater, an oi'atoi*, a wise, enlightened, far- 



56 MEMORIAL OF CALBB GUSHING. 

seeing, lil)eral statesman, rarely equalled in this 
country. 

THE ADMINISTKATION OF JOHN TYLEK. 

On tlu' 4th of March, 1841, the new administration 
came into poAver, and President Harrison, having 
placed himself s([narely in his inaugural upon the 
doctrines ol" tariif and linance advocated in congress 
and out of it, by the leaders of the Whig party, now 
triumj)haiit, selected a cabinet so distinguished and 
able that the eountr} had a right to expect the 
soundest and wisest policy. At this distance of time 
how illustrious the group ai)pears! Daniel Webster, 
Thomas Ewing, John Bell, Geoi-ge E. Badger, 
Francis (Iranger, and John J. Crittenden, statesmen 
all, experienced, wise, pati'iotic, powerful advocates 
of the policy of their party, and at the same time 
large-minded aud large-hearted defenders of the best 
interests of the republic. On the 4th of April the 
President passed away, an old man, crushed by the 
weight of i)ublic cares suddenly imposed, and bewdl- 
dered by a ])lin(ling storm of eagerness and impetu- 
osity which broke over the capitol. The duties of the 
Presidential office devolved u])on John Tyler, the 
Yice President, and one of the most extraordinary 
chapters in the history of American politics com- 
menced. 41ie ca1)inet of President Harrison, on in- 
vitation of President Tyler, retained their position, 
and the extra session of Congress, called before the 



EXERCISES AT CITY HALL. 57 

death of the President, convened on May 31st. The 
bold and imperious leadership assumed by Mr. Clay 
in the Senate at once attracted the attention of the 
entii-e countiy, and evidently annoyed many of the 
younger leadei-s of his own i)arty. His programme 
of the ))usiuess of the extra session : 1, The repeal of 
the sub-teasury; 2, Tlie incorporation of a national 
l)anl< ; 3, The provision of an adequate revenue, and a 
temporary loan; and 4, The distribution of the pro- 
ceeds of the public lands — was put forth with all the 
im])eriousness which marked the great Kentuckian, 
and gave rise to the statement that " Mr. Tyler had 
delivered a message; Mr. Clay vii'tually delivered 
another." The irritation had commenced which 
ended in an explosion; and even before there was 
any declared difference of opinion between the Presi- 
dent and his i)arty in Congress, Mr. Cushing took 
occasion to say in the House that he recognized no 
administration but that of John Tyler. It was upon 
the " Bill to incorporate the subscribers to the Fiscal 
Bank of the United States," the great measure of the 
session, the great object of the Whig party, the act 
which Mr. Clay had especially at heart, that the ex- 
plosion came. After long conference with the secre- 
tary of tlie treasury, Mr. Ewing, and many ingenious 
attempts to accommodate the well-known views of 
the President, and to conciliate the anti-bank men of 
the dominant party, the bill passed the two branches 
of Congress and was submitted to the President. In 
his veto message, with which he returned the bill to 



.kS IVlKMOinAL OV CAf.EB OUSllING. - 

llu' l)()(l\ ill wITk-Ii il ()rii;-iii:ilO(l, Ihc Pri'sidoiit 
ri'|)i';itc(l liis i>;iil\ opinions ni^ninst llic consrUulion- 
jililv of tln' l):miv, and drclnri'd lli:il it would Ih' :i 
( rinu' and an iiilainv in him lo sii;n tiic hill which liad 
lu-(Mi pri'si'iiU'd lo him. Mr. (May altacdvcd llio nu'S- 
saiio nilli ureal scvi'i-ily, diM-larin^- thai llu> j^rcsidcnt 
was hound lo prcst'rxc his scir-ri'spccl, hy Ix'ini;' 
ohi'diiMit lo llu' |)aiiy whicli cK'cUmI him, or hy ivsio-n- 
ini;' llu' |>iTsid(MU'y il' ohcdiciUH' was iin|K)ssil)l('. Mr. 
lvi\cs oC \'iri;inia warmly dcdt'iidcMl the President, 
and was chaiu'ed hy INIr. (.lay w^itli lodii'ini;- in tlie 
*'hair-\\a\ hons(>," ihe pel-hank system, in his Iransi- 
lion IVom llu' demoei'atie to tlu' whiu-eamp — with 
heinu" a memhi'r of an inner circle ol" administration 
advisers — with allemptinu' lo oi\i;ani/e a third l>arty, 
and lo snrronnd the Presidrnl wilh a secret cabal; 
Mr. Kives siuiiiricanl ly remindini!,' the senator I'roni 
Kenlncky in reply, that iIum'c were also minors ol" a 
diclalorsjiip al llie capilol, " iraniihl with far more 
(hin^'er lo ihe rei2,nlar and salutary aclion ol" oiir hal- 
anced conslilntion, and to the liheiiies of ihe |)eo])k\ 
ihan any seci'cl cahal ihat cmm' has existed or ever 
will exist." 'Pile senate Tailed to pass the hill o\ cr 
the Vi'lo, and a riiplnre hei;-an which was ncNcr healed. 
.V second hill lor a liscal a«;\>nt, called a liscal cor- 
|)oralion, mel wilh no hi>tter (ate at the hands ol' IJie 
I'resident — and the nijilnre was coni|)lete. On the 
1 1th of ScptemhiM- the memluM's of the Cahinc>t, with 
the exception of Mr. AVehster, resiomMJ, and a cahinet 
composed of Whi^s with democratic proclivitie.s, and 



EXERCISES AT CITY HALL. .19 

IJeiii(>('i-;its witli whig" procliviticis, was apjjoinlcd in 
their places. 'Vhv Whig raeml)ers of (Jongrcss rose 
up in Ihcir vvralh, invt in coujieil and issued an ad- 
(h'ess to tile peo|)li! oft lie United States, charging the 
Pi-esid(!nt vvitii a desire to create new political combi- 
nations, with having wrested from the Whig ))arty 
" onci of (Ik; Insst fruits of a long Jind pjiinful struggle, 
{iiid the consummation of a gloi'ious victory," and 
with having sent, it into the field oC |)olitical strife, 
" sti'ij)ped of the arms wln(;li success had [)laced in its 
hands." 

It, was at this point, that Mr. (Jushing took his 
stand, and following the lead of Mr. VV^'hster, issued 
ji counter manifesto, justifying the l*resident foi- 
clianging his coui'se on the Fiscnl (yorpoi';ition l>ill, 
and declaring that he still adhered to the pai'ty wliich 
placc(l him in power. In this manifesto he denounced 
the "• caucus dictatorshi]) " which hiid h(!en set U|) in 
congr(!Ss; warned Mi', (vlay tluit in attacking the 
President he would beat out his own brains and those 
of his party against a wall of his own construction; 
a])[)ealed to the Whig j)ai'ty not to " t hrow away the 
actuality of power for the ciin-cnt, four years" for 
"some contingent possibility four years hencc!'"'; re- 
minded his associates that a division in the \Vlii<i' 
party would insure a democratic succession; declared 
that the President, in refusing to sign the bank bills, 
had " violated no engagement, and committed no act 
of pcu'lidy in the sense of a forfeited pledge;" de- 
maiuh'd ibr him the right to exercise his own con- 



60 MEMORIAL OF CALEB CUSHmG. 

science in discharging the dnties of his office; com- 
mended Mr. Webster for remaining in the cabinet 
when " all the rest had fled ;'' and attacked the ad- 
dress of the WHiig part)^ "as the work of Mr. Clay — 
as an emanation of that cancus dictatorship in Con- 
o-ress of which he was always the embodied .idea." 

This remarkable session of congress, which com- 
menced on the 31st of May, ended on the 13th of 
September. Of its acts Httk^ now remains besides the 
effects of its controversies npon the political history 
of the conntry. The leaders of the Whig pai'ty were 
disappointed by their failnre to ]jreserve that Whig 
" unity " by which they hoped to impress their views 
npon the ])olicy of the government; the President 
was disappointed hy his failnre to found a third party; 
and the peo})le were disappointed by the failure of 
those whom thc}^ had |)laced in power to fuliil the 
promisees of a great campaign and a brilliant victory. 

Dnring the stormy session wdiich I have described, 
Mr. Cnshing found time, amidst the political contests 
in which he was engaged, to consider all the impor- 
tant (piestions which came before the House. He" 
earnestly advocated the Twelve Million Ijoan bill, to 
supply an exhausted treasnry. He suppoited the 
establishment of a mission to Sardinia, on the ground 
that the United States shonld hold diplomatic inter- 
conrse with all civilized nations. The destruction of 
the property and life of citizens of the United States 
on the soil of 'New York by British subjects, and the 
outrage on the steamer Caroline, in 1838, had been a 



EXERCISES AT CITY HAI^L. 61 

matter of active negotiation between our government 
and that of Great Britain. The administration of 
President Tyler assumed that "the territory of the 
United States must be regarded as sacredly secured 
against all such invasions;" and "this government 
can never concede to any foreign government the 
powei-, except in a case of most urgent and extreme 
necessity, of invading its territory." This policy was 
ably supported by Mr. John Quincy Adams and Mr. 
Gushing, the latter of whom, in debate in the House, 
June 24th, 1841, said: " I will not detain the House 
with any further discussion of these questions. This 
only I add, in conclusion, that if all or either of the 
points in controversy between us and Great Britain 
should end in war, I count with implicit confidence 
upon the patriotism of the government in all its parts, 
of both Houses of Congress, and every member of it, 
and on that of the whole people of the United 
States, to unite in carrying us triumphantly through 
it; to rally as one man under the broad banner of the 
Union, and never to yield until the entire continent is 
redeemed from foreign power and foreign influence, 
and the republican government shall be made to be- 
come the common blessing of the whole Xorth Amer- 
ica, from the gulf of Mexico to the farthest shores of 
the Arctic seas." 

In the same spirit he appealed for the liberal sup- 
port of the army in the second session of this same 
congress, insisting that it was not only wrong in it- 
self to cripple the government by an inadequate army 



62 MEMORIAL OF CALEB GUSHING. 

appropriation l>ill. l)iit that it was wasteful economy 
in the end; and he protested against humbling the 
nation before foi-eign governments by reducing the 
army, declaring that of all policy to reduce the army 
and navy he washed his hands. 

In this session he stood by President Tyler still, 
and supported the President's veto of the bill to ex- 
tend for a limited j)eriod the present laws for laying 
and collecting duties on imports — assuming with Jef- 
ferson that the executive, and congress Avith its two 
houses, constitute the " thi'ce branches of the legis- 
lature," and agreeing wtth Mr. Everett, who speaks 
of the President as " the co-ordinate department of 
the National Legislature." 

In the third session of the iJTth congress he op- 
posed the repeal ot the bankrupt act, passed at the 
first session, on the <>-rouud that it was a vacillatino- 
policy, and injurious to the business of the country; 
and he advocated the reiuuding of General Jackson's 
line. 

With this session his congressional career ended. 
That his course during his congressional life of eight 
years had been patrioiie, and national, and high-toned 
so far as the advocacy of questions brought before 
hun is concei'ued. no one can deny. lie at all times 
supported a humane and i)i'ogressive policy at home, 
and a manly and detianl i){)liev towards forei<>-n 
powers. How fai- he was controlled in all things by 
political wisdom, I leave for others to judge. When 
he retired from the national legislatui-e he was in full 



EXERCISES AT CITY HALL. 63 

accord with the President, who was elected by the 
great party, of which he was a conspicuous and pow- 
erful member; but the President was at open war 
with that party. So far as his political affiliations 
were concerned, Mr. Gushing during the remainder 
of his long life acted with the Democratic party when 
he took active part in any political organization — 
although in many instances he stood aloof, l^ound by 
no party ties whatever. From this time he attained 
no official position by the suffrage of the people — 
except as mayor of this his native city, and as a rep- 
resentative to the General Court of Massachusetts 
from this community, which always felt proud to 
place their interests and the expression of their views 
in his powerful hands. 

THE MEXICAN WAR. 

His public service now became of another sort; 
and it was mainly in the business of interpreting and 
applying our laws at home and abroad that he was 
engaged. But before proceeding to discuss this ser- 
vice, it is due to his comrades in the Mexican war to 
refer to his connection with them in that contest 
which ended in a large acquisition of valuable terri- 
tory to the United States, and which first taught 
foreign powers to respect our warlike capacity as a 
people. California and I^ew Mexico have become 
integral parts of the republic — an incalculable addi- 
tion to our wealth and to the extent of our power and 
civilization on this continent. The genius displayed 
by Scott and Taylor on the battle-fields of Mexico 



64 MEMORIAL OF CALEB GUSHING. 

won the respect and admiration of the great com- 
manders of the old AYorld. In reviewing the con- 
gressional career of Mr. Cnshing, it is easy to 
see how his sympathies were enlisted in a cause 
in which the honor of his country seemed to him 
to he involved, a cause which was accepted by 
his new political associates, a cause in which that 
army which he had so often defended on the floor 
of the Ilonse was employed. There have been 
many instances of the energetic devotion of the 
public men of Massachusetts to the work in which 
they wei'e engaged — but seldom has more resolu- 
tion been displayed than your distinguished townsman 
manifested, when the legislature of Massachusetts 
having failed to provide Ibi' the e([uipnient of a regi- 
ment of volunteers foi- the war, he furnished the re- 
quisite sum from his own means. Leading his regi- 
ment to the Kio Grande, he was attached to the army 
under the command of General Tayh)r, and soon after 
received the appointment of brigadier-general. He 
also served on the board of enquiry for the investiga- 
tion of charges against Generals Scott, Pillow and 
AVorth. 

THE TIIEATY WITH CHINA. 

Hut it was as diplomatist and jurist that he won 
his chielest distinction after his retirement from con- 
gress. On the lOtli of December, 18J:0, John Quincy 
Adams called up a resolution in the house asking for 
intbrmation regarding our relations with China, and 
complaining that when the American consul present- 



EXERCISES AT CITY HALL. 65 

ed a memoiial of the American citizens of Canton he 
was directed by the authorities there to place the 
name of the Emperor two inches higher than the 
name of the President. Mr. Adams desired that 
such distinctions should cease — and that the two offi- 
cers should be treated with equal respect. In this 
discussion he was warmly and eai'nestly supported by 
Mr. Cushing in an argument filled w^ith knowledge 
of the economy and policy of the Celestial Empire. 
In the following summer he was appointed commis- 
sioner to China to negotiate a treaty between that 
country and the United States. He entered upon the 
work assigned him with his usual energy and system. 
The government to which he was accredited was a 
sealed volume to all other nationalities ; the Mantchoo 
lan«'uagc seemed by its intricacies to constitute an 
impassible barrier between itself and every other 
tongue; the Chinese character was a mystery; Chi- 
nese manners and customs and wants presented an 
incomprehensible and perhaps repulsive problem, 
made venerable and unapproachable by an antiquity 
of thousands of years. Negotiations with the Em- 
pire had been peculiarly unsuccessful. But the mind of 
Mr. Cushing found most satisfactory work in arrang- 
ing- the business before him. He sought counsel 
and advice of Dr. Parker, long an American resident 
there, whose skill as a physician had won for him a 
high reputation, and whose keen and diligent study 
and observation had given him most intimate and ex- 
act information of the difficulties surrounding all 



66 MEMORIAL OF CALEB GUSHING. 

commercial intercourse with the Chinese merchant and 
government, and the best methods of protecting the 
lives and property of our citizens in Chinese ports, 
and of securing some form of respect for our system 
of education and our forms of rehgion. The vener- 
able physician, now withdi'awn from public . life and 
enjoying his well-earned home at the national capital, 
refers still with unabated admiration to the readiness 
with which the American Commissioner received his 
suggestions, and to the untiring zeal with which he 
entered upon his woi'k in China, where they were as- 
sociated during the entire continuance of the mission. 
The courtesy, and dignity, and patience, and keen- 
ness, and readiness, and anxiety of Mr. Cushing to 
learn everything which would enable him to perform 
his work well, were especially attractive to all who 
were associated with him in the service. Accepting the 
suggestions made by Dr. Parker, and submitting 
them to the State department, he may be said to have 
provided himself with the best instructions which 
could possibly be obtained. He was directed by Mr. 
Webster to enlarge the commercial relations between 
China and the United States as rapidly as j^ossible, to 
cultivate the friendly dispositions of the government 
and the people, to assure the Chinese government 
that the commercial regulations of the Empire would 
be respected, and that the intercourse between the 
heads of the two great governments " should be made 
to embrace only grave political questions, the tender 
of mutual regard, and the establishment of useful 



EXERCISES AT CITY HALL. 67 

relations." He was instructed to obtain an audience 
with the Emperor, and to insist on this courtesy as an 
act which the President of the United States had a 
right to claim, at the same time " he was to avoid the 
giving of offence and the wounding of the national 
pride." He was ordered to enlarge upon the extent 
of the territory of the United States, " their great 
commerce spread over all seas, their powerful navy 
everywhere giving protection to that commerce, and 
the numerous schools and institutions established in 
them to teach men knowledge and wisdom." He was 
urged to conclude a treaty between United States and 
China as favorable in all its terms as that existing be- 
tween that Empire and Great Britain. 

These instructions were more than fulfilled by the 
terms of the ti-eaty, which was signed July 3d, 1844. 
By this treaty objects of contraband and monopoly 
became a matter of stipulation between the two gov- 
ernments, and were not left to the Emperer alone. 
New provision was made for trade from port to port. 
The personal dignity of consuls was protected. Cit- 
izens of the United States were allowed to erect 
houses, magazines, churches, cemeteries and hospitals 
in each of the five ports. Provision was made 
for the employment of natives to teach the language 
of the Empire; and the purchase of books was 
legalized. The vessels of the United States were 
allowed to come and go between the ports of China. 
Direct communication with the court of China was 
provided for, — the first time in her history. 



68 MEMORIAL OF CALEB CUSHIN-G. 

Whatever may li;ive been clone since the negotia- 
tion of the Gushing ti'eaty with China, however wise- 
ly and widely Mr. Burlingame may have served the 
interests of both nations by his skillful offices and 
mana<>-enient, it cannot be denied that to this first 
oi)cning negotiation we owe entirely the establish- 
ment of such relations as rendered further intercourse 
possible. It was the first bond which bound the East 
and West together, and it accomplished more foi- the 
United States than the arms of Great Bi'itain had 
yet accomplished for that gi'cat commercial power. 
For Ghina, it taught her there was a Christian nation 
which believed more in the results of peaceful ai'bi- 
tration than in the power of the sword. Mr. Gushing 
returned to this country in 18^5 laden with knowl- 
edge of the language and institutions of the East. 

rilK TRKNT AFFAIR. 

The unexpected and anomalous difficulties which 
arose between the United States and Great Britain 
during the civil war, called for the exercise of great 
sagacity, profound knowledge of international law, 
and accurate judguient with regard to what would be 
possible and what impossible in negotiation. In the 
Trent affair, and in the lualter of Confederate cruis- 
ers, the course pursued by the British government 
excited alarm and astouishment in the minds of all 
who desired the success of the Union arms. And jthe 
opinion of a profound international lawyer and an 
experienced diplomatist like Mr. Gushing was consid- 



EXERCISES AT CITY HALL. 69 

ered of great value by all who were called upon to 
sit in judg-ment upon these questions, and by all 
whose interest and whose regard for tlie republic 
gave importance and significance to the decision. 
Fortunately we have Mr. Cushing's opinion of the 
seizure of Mason and Slidell, in an elaborate letter 
addressed by him to the Hon. Fernando Wood, Dec. 
6th, 1861. You who have listened to his views ex- 
pressed while a member of the House, on the pros- 
pective power of the republic, on the importance of 
supporting liberally the army and navy, and on the 
McLeod matter, will not be surprised at the stern and 
defiant and uncompromising manner in which he pro- 
posed to hold England responsible for her acts under 
the international law as interpreted by herself. It is 
curious and interesting to see how the diplomacy of 
the administration tended one way, and the opinion of 
a great American lawyer, warmed by impulse and 
free from responsibility, pointed another. In this re- 
markable letter he says : " I think we, in the United 
States, are over-sensitive I'egarding foi'eign commen- 
taries on our government, and on its acts and oui's; 
it would better become us to stand steady before the 
woi'ld in the calm self-possession and conscious 
strength of a great people." 

^' Mason and SHdell," he wrote, " are subjects 
to be dealt with as prisonei-g of war, or they may 
be proceeded against for ti-eason; but they could 
not be dealt with by us in either of these capaci- 
ties while they were on board the Trent. We 



70 MEMORIAL OF CALEB GUSHING. 

are to find a reason for their personal arrest while 
there. We have that sufficient reason, I think, 
in the I'aet that they were diplomatic ministers of 
the government ol' the insurgent states, commis- 
sioned as such, and, as such, destined for Great 
Britain and France." He goes on to say that " the 
hest modern writers of ])ositive law accept and carry 
out the general doctrines of Lord Stowell to all its 
legitimate consequences, which if not justifying the 
stoppage of enemy ambassadors universally, do, at 
any rate, distinctly justify the arrest in ithiere of the 
unari'ived, and of course unrecognized enemy ambas- 
sadors, and still more the uni-ecognized ambassadors 
of an unrecognized iufsurgent government." Fur- 
ther on he adds, " To aid the insurgents to es- 
tablish their independence would be on the part 
of a neutral nation, an act of intervention in 
war, which act, whether it were the supply of 
arms or of soldiers, or of pecuniary subsidies, or of the 
transmission of these, or the facilitating such supply 
or transmission, or the negotiating foi- them or pro- 
viding the means of negotiation, would constitute a 
breach of neutrality as respects the legitimate gov- 
ernment, ^^ow the ti'ansportation of insurgent am- 
bassadors not only comprehends within it the Con- 
traband Act of ti-ansporting despatches, but compre- 
hends also the entire (juesntio of indirect military aid 
to the insurgents in all its possible relations, together 
with the entire question of political aid." " To con- 
clude then," he says, " the act of Captain Wilkes 



EXJ^]UCISE.S AT CITY HALL. 71 

was one which any and every self-respecting nation 
must and would have done, by its own sovei*eign 
right and power, regardless of consequences. At 
the same time it was an act justified by the principles 
and doctrines of international jurisprudence." 

No man can read this opinion of the great interna- 
tional lawyer, in these days of the prosperity and 
power of the Republic, without being impressed with 
the soundness of the law, and the unyielding spirit 
which even in adversity insisted on asserting a doc- 
trine to which the popular heart warmly responded, 
but which diplomatic necessity felt obliged to set 
aside. 

THE ALABAMA CLAIMS. 

This spirit of defiant assertion for the government 
also manifested itself in the last great act of his life, 
perhaps the greatest of all, as one of the counsel of 
United States in the mattei submitted by the treaty 
between this government and Her Britannic Majesty, 
signed in Washington on the 8th day of May, 1871, 
to the tribunal of arbitration called to meet in 
Geneva. In this work Mr. Gushing evinced a depth 
of knowledge, an accurate power of detail, a patience 
in research, a readiness to labor, a zeal for justice 
and right, which astonished and delighted all who 
were associated with him. In his argument before 
the arbitrators at Geneva, to whom the two govern- 
ments had referred the question of damages arising 
from Confederate cruisers, fitted out in British ports 



72 ' MEMORIAL OF CALEB OUSHING. 

durino- the civil war, known as the " Alabama claims," 
he was earnest, sometimes impetuons, always clear, 
loo-ical and profound. He was there as counsel for 
the American government, and stnnding upon the 
doctrine laid down by himself as Attorney Genei'al 
in 1855, on the question of foreign enlistments, to 
which I have already alluded, that a government is 
unciuestionably responsible to other governments for 
defective local legislation, and for insufficient care in 
observing and enforcing all its obligations, he really 
announced the opinion which won the Alabama 
claims. He contended most earnestly for compensa- 
tion ibr all damages direct and indii-ect. He learned 
from the Secretary of State, Mr. Fish, that it was 
" with unfeigned surprise and sincere regret that the 
President had received the intimation conveyed in 
Earl Granville's note, that Her Majesty's government 
held that it is not within the province of the tribunal 
of arbitration to decide upon certain claims for indi- 
rect losses and injuries;" and that they were "neces- 
sarily to be taken into ecpiitable consideration in a 
final settlement of all differences between the two 
countries." He knew that as early as the 20th of 
May,1865, Mr. Adams stated distinctly in a commu- 
nication to Lord Russell, " that in addition to this di- 
rect injury, the action of these British-built, manned 
and armed vessels has had the indirect effect of driv- 
ing from the sea a large portion of the commercial 
marine of the United States, and that injuries thus 
received are of so grave a nature as in reason and 



EXERCISES AT CITY HALL. 73 

justice to constitute a valid claim for reparation and 
indemnification." He knew that when Sir Edward 
Thornton demanded of Secretary Fish, " that the 
United States Government should formally acknowl- 
edge that the indirect claims were not within the 
scope of the arbitration," the reply of the Secretary 
was that this was impossible, " because they had been 
presented to the tribunal under the firm conviction that 
they were included in the treaty." With that tenacity 
of purpose which governed him in all his public ser- 
vice, he insisted in his concluding chapter of the argu- 
ment of the American council, that enhanced rates 
of insurance, the transfer of United States commerce 
to the British flag, the prolongation of the war of the 
Rebellion, constituted a weight of injury which should 
not be lost sight of in the arbitration. To support 
this view he boldly directed his portion of the argu- 
ment; and joining his masterly powers to those of 
his associates, Mr. Evarts and Mr. Wait, he rendered 
his country invaluable service, by taking a high stand 
for the honor of onr gOA^ernment and for such asser- 
tion of international dealings as would give the Unit- 
ed States a precedent for the loftiest demands when 
she might have reached the height of her power and 
strength. 

He was appointed council for our government some 
weeks in advance of his associates, and had made val- 
uable suggestions to Mr. Bancroft Davis, the able and 
accomplished agent of the United States, to whom 
the country owes a debt of gratitude for his careful 



74 MEMOKIAL OF CALEB OUSHrNG. 

and complete presentation of the American "case" to 
the arbitrators. Before the arrival of his associate 
counsel in Europe the case as it now stands was print- 
ed; and when the arbitration opened, the counsel were 
occupied iu Paris prepariug their work, Mr. Gushing 
reachiug tlieiv on the 10th of Fel)ruary 1*^72, and 
bringing with him a mass of matter which had been col- 
lected in Washington under his supervision, and which 
was afterwards appended to the counter case,^ which 
was also prepared l^y Mr. Davis. Having proceeded 
to Geneva to unite with Mr. Davis in putting in the 
counter case and the accompanying documents, he re- 
turned to Paris for the preparation of the argument, 
and took apartments in the American quarter near the 
Arc de Tricmiphe. The argument was practically 
written and printed in English and translated and 
printed in French in thirty days. Of this work Mr. 
Gushing did liis full shai'e, and advanced as he now 
was in 3^ears, he was at the close as vigorous and l)Ouy- 
ant and sympathetic as ever. During the fortnight of 
negotiations which followed the putting in of the 
American argument, and preceded the putting in of 
the British ai'gument, he was a sagacious counselloi", 
u[)()n whose judgment his associates felt they could 
always rely in solving questions that belonged to the 
statesman more than to the lawyer. 

Of the American argument which controlled the ar- 
bitrators in their decision, there were thirteen chap- 
ters, whose authorship was, as near as I can ascertain, 
as follows, viz: Chapters 1 and 2 were written by Mr. 



EXERCISES AT CITY HALL. 75 

Evarts; Chapters 3 and 4, by Mr Cusliing; Chapter 5 
by Mr. Bancroft Davis; Chapters 6, 7, 8, 9 and 10, l)y 
Mr. Wait; Chapters 11 and 12, by Mr. Evarts; and 
Chapter 13, by Mr. Cushing, excepting the second 
subdivision which was by Mr. Davis. 

Of the argmnent of Mi*. Cushing in reply to the 
special argument of Sir Roundell Palmer, we are in- 
formed in the published report, that " this argument 
was written and presented in the French text as 
shown in the note;" — an illustration of the author's 
accomplishments as a scholar and linguist. 

In the midst of all this work, of whose daily elabo- 
rate discussions and consultations it is impossible to 
give an adequate idea, and the toilsome preparation 
of which the record gives no notion, Mr. Cushing 
took his lodgings at some distance from the hotels of 
Geneva, on the soiith side of the lake, where he could 
do the work assigned him free from intrusion. He 
found tmie to make himself acquainted with Geneva, 
its history, its local antiquities, and the personality of 
those who were prominent in the city during his so- 
journ there. He also studied the points of interest 
throughout the whole borders of the lake so thor- 
oughly that he w^as not only an agreeable companion 
but an accomplished guide to his associates in their 
drives and excursions. In the conduct of business 
inside the court, it was universally conceded that his 
dignified bearing, his great learning, his experience 
and his affability, produced an impression in the 
highest degree fiivorable to our cause. And it is 



76 MEI^IOKTAL OF CALEB GUSHING. 

affectionately said of liini l)y those most intimately 
eonneeted with him on this great occasion, that he 
was a counsellor lo whom Ihey could go with confi- 
dence, and a friend whom Ihey could imidicitly trust. 
I have in connection \vi(h Mr. ( 'Ushing's arguments 
on tlie .Vlahania claims, as elsewhere, spohen of the 
tenacity ol' his mind in adhering to what he consid- 
ered his matui-e and well-defined |)rincii)les of law 
and conduct, notwithstanding the a[)i)arent inconsis- 
tency of his political liCe. This chai'acteristic of his, 
and his sturdy demand Cor lair dealing in argument 
are also illustrated in his well-hnown "History of the 
Treaty of Washington." In the j)agi'S of this re- 
markable volume he pivsses still his views of the 
claim for '' indirect damages," which he designates, 
Avith his usual comprehension of the interests of his 
country, national (Umiages, and exposes with a keen 
sense ol' honor the successful attem|)t oC Lord Chief- 
Jnstice Cockbum, the l>ritish arbitratoi', to insert a 
partizan jiolitical docuuKMit into an oi)inion which 
should have been a ])urely judicial statement. Tn 
this as in all his course upon matters gi'owing out ot 
the ti'caty of AVashington, he dis])layed the direct 
and steady and forcible operation of his mind, his 
deep rt'gard foi' the honor of his country, and his 
high ap|)reciation of the laii'uess and dignity demand- 
ed by lolty otficial position. There may have been 
moments when he was controlled by |)artizan views, 
but not upon tlu' bench, not in his oi)inions as a law- 
yer, not in his service as a (Uplomatist. 



EXERCISES AT CITY HALL. 77 

The remaining; act of Mr. Ciishing's diplomatic life 
was performed by him as minister to Spain, in which 
he maintained his high reputation as a wise and faith- 
ful public servant. 

II rS CAREER AS A LAWYER A^NTD JURIST. 

Of Mr. Gushing as a lawyer and jurist, a just and 
appreciative woi*d has already been spoken Ijy his 
l)retlH'cn of the Essex bar. The practice of his pro- 
fession was far too short to develop his capacity as an 
an advocate, l)ut long enough to indicate his wonder- 
ful power of grasping the principles of the law and 
of arranging and retaining them in his mind. Ele- 
vated to a seat on the Supreme bench of Massachu- 
setts in 1852, after long absence from the courts, he 
brought his great storehouse of general legal knowl- 
edge into such such successful operation, that his 
opinions rank high among those pronounced by the 
court, at a time when it held a foremost place among 
the judicial tribunals of the country, and when its 
great chief justice earned the reputation of having 
" made more law than any other man in the republic," 
as I once heard Mr. Cushing say on introducing him 
to one of the distinguished lawyers of another state. 
He was a brilliant, faithl'ul, able judge, filled with a 
sense of his obligations and thoroughly conscientious 
in the discharge of his duty. Of him said Chief 
Justice Shaw, " When he came upon the bench we 
did not know what to do with him; when he left we 
did not know what to do without him." 



78 MEMOIMAI. i)F CALEB GUSHING. 

As Attorney (>(Mum-u1 of the irnitcd Stales, a posi- 
tion to whicli be was cnlkMl by rresideiit Pierce in 
1851), be pi'oved binisell" most eflieieiit as the law offi- 
cer of ibe administration, and did mneli to enlarij^e 
and (b'line Ibe duties oC tbal depailment of tlie gov- 
ei-nmenl. His opinion on I'oi'eign enlistments lias be- 
come Ibe <;iii(iin<;- bnv of Ibe land to wbicb other na- 
tions are held strictly accountable. His opinion upon 
the (piestion ol" indeimiity by the government for the 
use of JMorton's i)atent loi' aiK)OSthesia in suri2,ical o})- 
erations, is still admired as a sound and clear state- 
ment ol" ])atent law and as a charminj^' essay ujion 
scientilic discovei'y and nu'chanical invention. He 
delined the duties of the Attorney dieneral and the re- 
lation of bis ollice to the Federal ( Jovei'unient, in a 
way wbicb has since bis day been observed, and be 
put a sto]) to the c-ustom of bis predecessors of j)nr- 
suini;- their |)i'i\ ate business in ollice and court, while 
in the employ of the government. He laid down the 
duties of congress nnder the constitntion, and fur- 
nished three important volumes of the thirteen, con- 
taining the opinions given by his department since 
the foundation of tlie republic. 

coNCLusroisr. 
That the mind of Mr. Gushing, which grasped 
with so nnicb readiness and force questions of pub- 
lic policy, should have made a conspicuous and bril- 
liant mark in the Held of general literature, is not sur- 
pnsing. As an orator on all public occasions, as a 



EXERCISES AT CITY HALL. 79 

writer of esscays for the reviews of the day, as the 
author of the history of his native town, of a record 
of his early travels in Spain, of a treatise on the 
Treaty of Washington, as a speaker in political cam- 
paigns, as a popuhxr lecturer he won a high rcjuita- 
tion. His style as a writer was somewhat over- 
wrought and llorid — more.' so by far than was neces- 
sary considering the amount of information and the 
depth of thought which it conveyed — but it always 
commanded the attention of the reader, and bore the 
marks of careful study and a cultivated taste. As an 
orator he was powerfid and impressive, in gesture 
not so remarkable for grace as force, in voice as cap- 
tivating as a well-toned organ. Before me lies a 
long list of orations, speeches, addresses, lectures, 
essays, extending from 1824 to 1875, more than half 
a century, during which his country advanced from 
childhood to manhood, and passed from a doubtful to 
a positive, well-defined, aggressive, powerful nation- 
ality. In all these yeai's his name appears as the 
careful student of public affairs, the devoted and ac- 
complished scholar, the i)i'()found thinker, the close 
observer, ready at all times to express his views in 
public, and sometimes ovei'laden and confused by his 
wealth of knowledge in discussing the men and 
■measures of his time. His library which he left 
behind him — a mute instructor upon his modes of 
thought and study, contains the works of every great 
writer on international law and maritime law, from 
Yattel to McCuUoch, in all civilized tongues, the best 



80 MEMOKIAL OF C^il^EB GUSHING. 

editions of Greek and Latin classics, histories, ancient 
and modern, of Spain, and later liistories of all 
Spanish provinces and Sonth American states, 
Chinese volumes of eveiw description, bearing upon 
the history, manners, customs, and litei'ature of that 
remarkable people, hundreds of French and' Spanish 
jiovels — all poiulinglo the vei'satility of his mind, its 
modes oC relaxation, and to his deep interest in all 
the methods oi* state and society by which civilized 
man organizes his government, and jH'Ovides for his 
place in the family of nations — all indicating his 
training ibr practical statesmanship, and the manner 
in which abstractions somewhat unlitted his mind for 
practical politics. 

I have relrained from discussing the misfortunes 
and disap[)()intnients which fell upon your great 
townsman during his long and busy life — disappoint- 
ments and misfortunes which he sacredly laid away 
with his sorrows in the secret chambers of his heart, 
where he treasured them in silence — for they belong 
to the i)ast, and are not to be counted in the high ca- 
reei- which we have nn't to commemorate to-day. 
Perhaps he was not wise as this world counts wisdom, 
but he was loyal, honorable and honest in his deal- 
ings with his Ibllow-men — ^^just and generous in his 
estimate oftheir motives and cai)acity. He preferred 
to follow a friend rather than lead an enemy. His 
sensibility was so great that it was easier for hhn to 
appeal to his pride to endure and suifer silently a 
wrong, than it Avas to summon his courage to resent it. 



EXERCISES AT CITY HAI.L. 81 

Before his fellow men he stood hi an attitude of lone- 
liness and solitude, while his obedience to his person- 
al friends, his devotion to their personal interest, his 
dependence on their counsels, revealed a deep and 
hidden sentiment, which his nature and his experience 
Avith mankind led him to conceal in his profoundest 
depths. Less and less as time went on did he seek 
the companionship ormen; but he drew closer and 
closer to his native town ; he turned with warmer 
longing to his home; he be(;ame gentler among his 
friends, more attractive in his intercourse, keener in 
his enjoyment of every manifestation of the good 
qualities of the mind and heart in young and old. In 
this ancient place he found his peace — here among 
the memories of the past, the shadows offomilar faces, 
the charms of the landscape, the river, the sea, upon 
which his eye rested in his childhood — here where he 
was known as your illustrious son — here Avhei-e he al- 
ways found sympathetic silence for his disa^Dpoint- 
ments and "joy for his fortune," And so here, as I 
have already said, a long life, not I think thoroughly 
understood, not thoroughly appreciated, perhaps not 
thoroughly fortunate, has closed, — happy at least in 
its ending — a life in which — 

" The busy day, the peaceful night, 
Unfelt, uncounted, glided by. 
His IVame was firm, his powers were bright 
Though now his eightieth year was nigh. 

Tlien witli no fiery, throl)biug pain, 
No cold gradations of deca}', 
Death broke at once the vital chain. 
And freed his soul the nearest way." 



82 MEMOKIAT. OF CALEB GUSHING. 

After the eulogy the choir accompanied by the or- 
chestra i-ciukM-ed " lTai)i)y and Blest are They/' from 
the oratorio of St. Paul. 

Mayor Currier then said: — 

Ladles and Gentlemen:— Md^wy \^itQY^ have been 
received from gentlemen who are unable to be 
])resent here to-day, but, owing to the lateness of the 
hour, I will read but one of them. 

The letter received (rom lion. Hamilton Fish of 
New York, which may be found among those se- 
lected for ])ublication, was then read. 

The Kev. Sjmiuel J. Spalding D. ]). of ISTewbury- 
port then i)ronounce(l the benediction and the 
audience quietly dispersed. 



At the close of the exercises in City Hall, the in- 
vited guests proceeded to the residence of Mayor 
CurriiT, on TTigh street, where a substantial enter- 
tainment awaited them. The house was appropriate- 
ly decorated, and the (iermania Orchestra enlivened 
the occasion Avitli some of their best nmsical selec- 
tions. 

The othcers and members of the Cushing Guard 
who Avere present at the memorial services in City 
ITall, marched to tlie New Burial Ground with arms 
reversed and muttle drum beating, and deposited on 
the grave of Caleb Cushing a wreath of ivy, autumn 
leaves, smilax, white innnortelles and Mai-shal O^JNeil 
roses with the monogram ''C. G." of purple immor- 
telles in the centre, and thus brought to a fitting close 
the impressive ceremonies of the day. 



LETTERS FROM INVITED GUESTS. 



The following letters have been selected for pul> 
lication from those received in answer to the invi- 
tation to attend the Memorial Services in commemo- 
ration of the life of Caleb Cashing. 



from the governor of massachusetts. 

Commonwealth of Massachusetts, ~) 

Executive Department, V 

Boston, September 24, 1879. ) 

Hon. John J. Currier, Mayor oj Nexvhuryport. 

His Excellenc}', the Governor, directs me to express his regret 
that a prior engagement will prevent his attendance at the service 
in Newburyport, October 8th, in commemoration of the life and 
character of the late Hon. Caleb Cashing. 

Your obed't servant, 

William M. Olin, 
Private Secretary. 

FROM the LIEUT. -governor OF MASSACHUSETTS. 

September 22, 1879. 
Hon. John J. Currier, Mayor of Neicburyport. 

My dear sir: — If possible I shall be happj- to accept jour kind 
invitation for the 8th of October, for which please accept my thanks. ' 

I am 

Very respectfully j^ours, 

John D. Long. 



84 MEMOKIAL OF CALEB GUSHING. 

FKOIM THE SrKAKKU ()!• JIASSAOIIUSKTTS HOUSE OF REPRESENTATIVES. 

lion. John J. Currier, Mayor of Neii'hurijporf. 

l)^..„• Sir:— Youl- kind invitation to attend the services in eoni- 
inenioralion ol" the hile lion. Calel) ( 'iisliiiiii- is at liand, and you 
have niv hearty thanks lor llu' same. I re«iret, however, that 
absence IVoni the state will compel me to decline bcin<2; present. 

Kespectrully yours, 

Levi C. Wade. 



FROM THE CHIEF-JUSTICE OF THE SUPREME .lUDTCIAL COURT OF MASS. 

Boston, October 4, 1879. 
lion. John J. Currier, Mayor of Neivhuryport. 

Chief-Justice Gray very nnich regrets to lind himself compelled, 
by imperative engaii-ements elsewlu're, to decline the courteous invi- 
tation of the city council of Newburyport to be present at the me- 
morial service on \Nednesd;iv next. 



FROM ASSOCIATE-.H'STICE MORTON OF THE SUPREME COURT. 

Andovek, September 2G, 1879. 

Hon. John J. Currier, Mayor of Xewhuryport. 

I\Iy dear sir: — It gives me plt'asuiv tlinl I ;im able to show my 

respect for the late Ciileli Cushing by accepting your invitation to 

be present at the memorial service to be given in his honor on the 

8th of October. 

Very truly yours, 

Marcus Morton. 



FROM ASS<»CIATE-JUSTICE AMES OF THE SUPREME COURT. 

liiiooKLiNE, September 27, 1879. 
Hon. John J. Currier, J\[ayor of Newburyport. 

Dear Sir: — My engagements are such that 1 shall not be able to 
attend the memorial servici" in connnemoration of the services of 



LETTERS EllOM INVITED GUESTS. 85 

your distinguished townsman, the late Hon. Caleb Gushing. With 
many thanks for your kind invitation, 

I am respectfully yours, 

Seth Ames. 



FROM SENATOR FRENCH OF THE THIRD DISTRICT. 

"RocKLAWN," Bay View, September 22, 1872. 
His Honor, Mayor Currier, Newhuryport. 

Dear Sir : — I have the honor to be in receipt of your polite invi- 
tation to attend a memorial service in honor of the late Caleb Cush- 
ing, on Wednesday, October 8th. It will afford me much pleasure 

to attend. 

I am very truly yours, &c., 

Jonas H. French, 



from the attorney-general of the united states. 

Department of Justice, ) 

Washington, September 18th, 1879. f 

Hon. John J. Currier, 3Iayor of Newhuryport. 

Dear Sir : — I am much obliged by an invitation of the city 

authorities of Newburyport to ])e present at the memorial service in 

commemoration of the life and character of the late Honorable 

Caleb Cushing, and regret extremely that my engagements are 

such that I am compelled to decline the honor of uniting with the 

citizens of Newburyport in the last interesting tribute to be paid 

their distinguished fellow-citizen. 

Your obed't servant, 

Charles Devens. 



FROM EX-SECRETARY OF STATE, HON. HAMILTON FISH. 

Glenclyffe, Garrison's P. O. ) 

Putnam County, N. Y., October 3, 1879, | 

Hon. John J. Currier, Mayor of Neivhuryport. 

Dear Sir : — I regret my inability to accept the invitation kindly 



86 MEMORIAL OF CALEB CUSHING. 

extended to me to attend the memorial service in commemoration 
of tlie life and character of the late Mr. dishing. 

TroU lie as Massachusetts has been of great men, great scholars, 
and great statesmen, she lias procUu-ed few, if any, who in breadth 
of genius, or in extent of le:irning. research, scholarship or states- 
nmnsiiii), liave surpassed or equalled JMr. Cnsliing. To hhn the 
nation owes nuu'h. Selected fen- the purpose by another of Massa- 
ehusetts' great men, lie opeui'd the relations of this country with 
that vast Eastern Emi)ire whose civilization dates back so many 
centuries, that it had couu' to regard as barbarians all outside its 
limits. 

To him as the leading counsel before the Tribunal at CJeneva, the 

eounti'y is iu(lei)te(l for the (•omi)i'ehensil)le ])resentation of its case, 

resulting in the verdict there obtained. Ilis studies extended be3'ond 

the range of the nuuiici|)al laws of his own country : — his knowledge 

of the law of nations and his familiarity with the languages, the 

literature and the institutions of other countries, enabled him to 

hold intercourse with, and to impress himself, and the points, and 

the logic of the American case, u[)ou those to whom the English 

language was not I'amiliai'. His argument before the Tribunal, it 

was. which. delivercMl in a language undei'stood by and familiar to 

each of tlie arbitrators, especially the three not named by either of 

the parties litigant, brought the law and the facts on which rested 

the American case to the intelligence of the entire court. For this, 

as for his many otlu'r great services, 1 join most cordially with you 

in the tril)ute of honor — high honor — to the memory of Caleb 

Cushing. 

With nmch respect, 

Your ob't servant, 

Hamilton Fish, 



FROM THE PRESIDENT OF THE MASS. IIISTORIOAL SOCIETY. 

Brookline, jNIass., October 4, 1879. 
Ho7i. John J. Currier, Mayor of Newburi/jiorf. 

My dear sir : — I have ventured to posti)on(> an}' answer to your 



LETTERS EKOM INVITED GUI^STS. 87 

obliging invitation, until I could see my way clear to accepting it. 
I regret now on my return from New York, to be compelled to 
abandon the idea of l)eing present at the memorial ser\'ice on Wed- 
nesday next. My old relations to 30ur late most distinguished 
statesman, in Congress and elsewhere, would have made this occa- 
sion pecuUarly interesting to me ; but an imperative engagment, 
of a somewhat public character, leaves me no alternative, and I can 
only offer you my grateful acknowledgements of the invitation, with 
sincere wishes that the ser\ice may be worthy of the subject, and 
of the city of which he was so long the pride. 
Believe me, Dear Mr. Mayor, 

Respectfully and truly yours, 

Robert C. Winthkop. 



from the president of harvard college. 

Harvard University, 
Cambridge, Mass., Sept. 24th, 1879. 

Hon. John J. Currier, Mayor of Neivhuryport. 

President Elliot regrets that on account of a stated meeting of 
the Board of Overseers of the University on Wednesday, Oct. 8th, 
at 11 a. m., he will be unable to attend the services in commemora- 
tion of Caleb Cushing at Newburyport. He also regrets his inal)il- 
ity to accept the Mayor's very polite invitation for the same day. 



FROM A COLLEGE CLASSMATE. 

Lowell, Mass., Oct. 7th, 1879. 
Hon. John J. Currier, Mayor of Newburyport. 

Dear Sir :— I am sincerely grateful to you for the opportunity of 
witnessing and joining in doing honor to the memory of your dis- 
tinguished townsman, Hon. Caleb Cushing. I am indebted probably 
for this honor to the fact that I am a hum])le member of the Harvard 
class of 1817. It is often said a person had for classmates distin- 
guished men, as if it was a distinction of his own acquiring, while, 



88 MEMORIAL OF CALEB GUSHING. 

in truth it is wlu^Hv tu^cidcMital. In some respects this class has heen 
reniark:il»le. Eighty-one entered the ehxss and sixty-seven gradua- 
ted, of whom to-day, sixty-two years since their graduation, nine- 
teen are living. luid all would doul)tless have liouored your invitation 
by their presence, had not age and its consequences forbidden. 
The class has I'ui-nished Clergymen lifteen, li^-e of whom have the 
degree of S. T. D., Physicians nine, Lawyers thirteen. Tutors in 
College six, Secretary of Navy one, U. S. Minister to England 
one. Judge of Supreme Court of II. S. one, Attorney-General of 
U. S. one, Members of Congress three. Ambassador Extraordinary 
to Spain one. Treasurer of Harvard College one, College Professors 
two, Presi(U'nt oi' lirowu University one, l^resident of American 
Antiquarian Society one. Mayor of Boston one, Ma^'or of Cam- 
liridge one. The class ceU'brated tlie sixtieth anniversary of its 
graduation -June 2()th, 1.S77, and fourteen were present; all took 
part Mud enjoyed a full ll(»w of spirited and interesting discussion, 
whicli was their hist oi)porliuiit.y of listening to the eloquence of 
Mr. Cushing who ni'ver a|)peared to better advnntage and charmed 
us all. Sylvnnus I). Mitchell of Boston was detained by accident, 
and Kev. Sti'phen II. Tyng I). I), of New York detained by sick- 
ness scut a cordial and beautiful letter. The average age of this 
company was eighty-one years. 

IvespectfuUy yours, 

John O. Gkeen, M. D. 



fkom a college classmate. 

103 West Si'ringfield Street, 

Boston, October 1, 1879. 
Hon. John J. Currier, J^fai/or of Neivburt/porl. 

Dear Sir: — 1 wish gratefully to :K-knowledge the courtesy ex- 
teudvil to me liy you. as the mnniciital head of your city, inviting 
me to attend the memorial service in honor of your late distin- 
guished fellow citizen, Caleb Cushing. 

It will give mv pleasure, as one of the few survivors of the Har- 
vard class of 1817, to be present at the service in honor of him, 



LETTEltS FROM INVITED GUESTS. 89 

though it is true that, as far as I am personally concerned, "the 
divinit}' that shapes " our course in life has led him and myself in 
such divei-gent paths that since our graduation we have rarely met. 

His erniiKMit inU'llcctual ability, his varied scholarship, his dis- 
tinction as a jurist, and of late years his services to his country in 
its foreign iclations, are well known to everybody, and, of course, 
have been recognized and watched with interest by his classmates. 
His frank :ind courteous greeting wlien we did occasionally meet, it 
was always a pleasure to encounter. 

As the numbers of the class dwindle, the survivors naturally 
gather closer together, abiding the time of their own departure, 
while recalling the memories of the departed, and the distinctions 
arrived at l)y them in their earthly career. 1 hope to be with you 
at the time appointed. 

Very respectfully, 

Your friend and servant, 

Robert F. Wallcut. 



FROM ONE OF THE SELECTMEN OF SALISBURY. 

Salisbury, Mass., Oct. 4, 1879. 

Hon. John J. Currier, Mayor of Newhuryport. 

Dear Sir : — In the early records of this town frecpiently occurs 
the name of Caleb Cushing. First, "Rev. Caleb Cushing" — "Hon. 
Cnlcl) Cushing," as a delegate to the Congress at Watertown — 
"Caleb Cushing," town clerk — "Caleb Cushing," clerk of the first 
pai-ish church — " Calel) Cushing," "Committee of Conference in 
the Revolutionar}- period," &c., and last we have the record of the 
l)irth of Caleb Chishing, who, at the age of two years, made New- 
huryport his home, and honored her with the lecord of his public 
Hfe. 

I accept with pleasuri; your invitation to be present at the memo- 
rial service in commemoration of his life and character. 
Very respectfully yours, 

W. H. B. Currier. 
12 



90 MEMORIAL OF CALEB GUSHING. 

iriU)M nU)l.KS.S()lt WILLIAMS OK YALE OOLLEGK, INTEIII'UETER FOR MR. 
CUSIIING IN CHINA. 

New Haven, ScpU'inl.cr 191h, 1.S79. 

lion. John J. Currier, Mayor of Newhirijport. 

Dj.ji,. Sir :— 1 l)c'g to return my sincere thanks for the polite invi- 
tation which yon liave sent nie to attend and join in tlie memorial 
service ior Mr. ('usliint>-. on the 8th prox. The city of Newbury- 
port (U>es lierseir lionor in thus recoiiiiizino' and setting forth the 
character and services of licr disjinuuislied son. who has written his 
name in tiie annals of llie lu'puhlic in so many ways and excelled 
in such diverse lines. 

In seudini;- this note of n-grct that I shall be uual)le to attend, T 
add the wish that the occasion may succeed according to your high- 
est anticipation. 

Believe me Sir, 

Y'ours respectfully, 

8. Wells Williams. 



KUOM 1H>N. OHAKLES LEVI WOODUUKY OE I50ST0N. 

Boston, October 1, 1870. 
Hon. John J. Currier, Maf/nr of Newbtiryport. 

Sir : — It will give me nmch i)leasare to accept your kind invita- 
tion to be present at the memorial services in commemoration of 
your illustrious townsman, (ieucral Cnshiug. From the time of his 
I'otiuu from China 1 have had much friendly intercourse with Gen- 
eral Cushing, and observed with admiration his vast and varii'd ac- 
(|uirements, the facility with which he wielded them, the extraordi- 
nary vigor of his mind, and the energy and industry of liis habits, 
lie was not reticent in conversation; his store of knowledge was 
free to those who sought it. I regard as one of tlu' most pleasing 
and impressive incidents in his political career the warm alfection 
and esteem he received from the citizens of Xewburyport. With- 
out regai-d to party politics, time and again, Ihey sent him to the 
legislature, because they l)elieved his I'xpi'rience, judgment and 



LETTERS FROM INVITED GUESTS. 



91 



knowledge were more important qualifications tlian his political 
afiiliations. It is iionorable to theii- independence and dignity, as 
it also is creditable to his uprightness and integrity, that such rare 
evidence of good citizenship on the part of constituents and of 
agent should l)e furnished by Newburyport. Although the prestige 
of his services in connection with the general government overshad- 
ows this mori' local incident, yet I trust that neither the memory of 
these facts nor of his great usefulness in the state legislation will be 

lost. 

I am very truly yours, 

Charles Levi Woodbury. 



FROM EX-CHIEF-.rUSTICE GUSHING OF NEW HAMPSHIRE. 

Charlestown, N. H., October 4, 1879. 

Hon. John J. Currier, Mayor oj Neivhuryport. 

Dear Sir : — Your favor, enclosing an invitation to be present at 
the memorial services in commemoration of the life and character 
of Mr. Cushtng, came duly to hand. I regret that my professional 
engagements will prevent my acceptiug your invitation to be pres- 
ent. I regret this the more because my family is perched on a re- 
mote branch of the same genealogical tree as the late Mr. Caleb 
Cushing, a fact which increases my interest in the occasion. 
Very respectfully, 

Your obedient servant, 

E. L. Cushing. 

EROM REV. S. K. LOTHROP, D. D.. OF BOSTON. 

Boston, September 30, 1879. 

Hon. John J. Currier, Mayor of Newhurijport. 

Dear Sir : — I accept with much pleasure the invitation with 
which I have been hmiored by the city council of Newburyport, to 
attend the memorial service in commemoration of the life and char- 
acter of the late Hon. Caleb Cushing. 1 luive known Mr. Cuslung 
ibi- more than sixty years, and at times had opportunity for much 



92 MEMORIAL OF CALEB GUSHING. 

intercourse with him. I heard Mr. Webster say once, in speaking 
of his ability and wonderrul powers of acquiring knowledge, that 
Mr. Cusliing had not been six weeks in Congress before he was ac- 
knowledged to l)e tlie highest authority on wliiit had been the legis- 
lation of Congress upon any given subject. No man could tell so 
instantly what had been the action of the government in i-elation to 
any matter as Mr. Cushing. 

I shall be luippy to share in the honor shown to his talents and 

his public services. 

Very respectfully yours, 

S. K. LOTHROP. 



FROM rUKSIDKNT OF ^'KW ENCil.ANO IIISTORIC-GKNEAI.O(iI('AI- SOCIETY. 

Ho7t. John J. Cnrrii'.r, Mai/nr of Newhuryport. 

UosToN, September "2(>, 1879. 
My Dear Sir: — 1 sliould be most happy to i)articipate in the 
memorial services in honor of the late Calcl) Cushing, LL. 1)., but 
I am not sulliciently reeovered from the accident which Vx'fel me 
last spring as to do so. With many thanks for youi' kind invita- 
tion, I am 

Most res})ectfully yours, 

Maksiiai.i. p. Wilder. 



FROM (JICXERAL DAVIS OF PENNSYLVANIA. 

DOYLESTOWN, Pa . . Sept. 20. 1879. 

Hon. John J. Currier, Mayor of Newhuryport. 

Dear Sir: — J am grcMtly obliged for your invitation to attend the 
Cushing memorial services on the 8th prox. Nothing but the most 
positive engagement will prevent me being present on that interest- 
ing occasion. I served on General Cushing's statf during the Mex- 
can war. and had great respect for him. T was with him at New- 
buryport in the winter of 184(;-47, when he liad a pul)lie reception. 
I remain 

Yours respectfully, 

W. H. II. Davis. 



LETTEKS FROM INVITED GUESTS. 93 

FROM THR CLEHK OF THE U. S. SUPREME COURT. 

Washington, D. C, October 0th 1879. 

Hon. John J. Currier, Mayor of Newhuryport. 

Dear Sir : — I regret very much tliat urgent business and feeble 
health constrains me to decline your kind invitation to attend the 
memorial service in connnemoration of the life and character of the 
late Caleb Gushing. 

Very truly yours, 

D. W. MlDDLETON. 



FROM BISHOP CLARK OF RHODE ISLAND. 

BoNLEDGE, Warwick Neck, K. I., Sept, 18, 1879. 

Hon. John J. Currier, Mayor of Newhuryport. 

Dear Sir :— I regret to say that another engagement prevents me 

from accepting your polite invitation to attend the memorial service 

on Wednesday next. 

Very truly yours, 

Thomas M. Clark. 



FROM HON. GEORGE LUNT OF SCITUATB, MASS. 

SciTUATE, Mass., Oct. 6, 1879, 

Hon. John J. Currier, Mayor of NevJmryport. 

Dear Sir : — You must not impute it to any incivility that I have 

not heretofore replied to the invitation to attend the observance of 

the obsequies of Caleb Cushing. In fact, 1 have been ill enough to 

make it still inexpedient for me to Ijc absent from home, though 

now considerably better. With my best wishes for the success of 

the celebration, I remain 

Yours very truly, 

George Lunt. 



FROM patten SARGENT ESQ. OF MERRIMAC. 

Merrimacport, Mass., Oct. 4, 1879, 
Hon. John J. Currier, Mayor of Newhuryport. 

Dear Sir : — I accept with pleasure the kind invitation to attend 
the memorial services in honor of the late Caleb Cushing. I liave 



94 MEMORIAL OF CALEB GUSHING. 

felt great respect for him for OA-er fifty years, when I first knew him 

as a candidate for representative for Congress, in which he had my 

hearty support till elected. 1 am now over 86 years old. 

Very respectfully yours, 

Patten Sakgent. 



FROM H. H. OHEKVEIJ ESQ. OP WRENTHAM, MASS. 

Wrentham, Oct, 6, 1879, 
Hon. John J. Currier, Mayor of Neivburyport. 

Dear Sir : — 1 have the honor to acknowledge the receipt of your 
kind invitation to join in the memorial services to the late Caleb 
Cushing on the 8th inst. I regret to say that my delicate health 
prevents me from joining in these interesting services ; interesting 
especially to me whose good fortune it was to have met Mr. Cush- 
ing at Washington in 1840, and to have known him perhaps more 
intimately, socially, politically, and in business affairs, than an}' 
other person, which intimacy continued through all his varied and 
most eventful life up the time of his death. In a most active life 
in Washington during all these years, both in public and private, 
I have been associated intimately with the leading men of all par- 
ties, the makers as well as the executors of the laws, and I can 
with entire truth say I have never met so learned a man as Caleb 
Cushing. He was called upon by the highest official, as well as the 
humblest citizen, and was a cheerful dispenser of knowledge. 
I well remember that Mr. Sumner, a few months before his death, 
referring to my long and intimate relations with Mr. Cushing, said, 
•'he had never met at home or abroad, with any one so full of 
knowledge as Caleb Cushing." With thanks for your invitation, 
I am with great respect, 

Your obedient servant, 

B. H. Cheever. 



KROM ALEX Y. \\ GARNETT ESQ. OF WASHINGTON, D. C. 

Hon. John J. Currier. Mayor of Newbury port. 

Washington, D. C., October 6, 1879. 
Dear Sir :— Your favor of the 3d inst. inclosing an invitation 
to your residence upon the occasion of the memorial services to be 



LETTERS FROM INVITED GUESTS. 95 

held in honor of the late Mr. Caleb dishing, has been received. 

I regret to say that imperative engagements here will compel me 
to forego the pleasure of being present at that time and witnessing 
ceremonies which could not fail to inspire me with the deepest in- 
terest. It affords me no little gratification, my dear sir, to witness 
this demonstration on the part of the citizens of Newburyport, evi- 
dencing as it does, an appreciation and respect for those estimable 
qualities of mind and heart illustrated in the career of our late illus- 
trious friend, so strikingly in contrast with the demoralized and 
vitiated taste which characterizes the present epoch of our national 
existence. 

The man who can impress his posthumous memory upon the 
minds of the public, either h\ his superior wisdom, exalted patriot- 
ism, spotless character or universal philanthropy, through one dec- 
ade of the present age, is as much an object of wonder as of ad- 
miration. The au)'i sacra fames which overshadows all other ele- 
ments of human character in the present day, with its attendant 
train of licentiousness and irreverence, recognizes none but the liv- 
ing. The very fanes of our ancestors have been invaded and ruth- 
lessly despoiled of their sacred relics and cherished mementoes of 
patriotism and moral excellence. The memory of Washingion 
himself is no longer respected, but daily held up to ridicule by the 
public press. Even death invests the memory of a public man 
with no sanctity which can secure him an immunity from the ridicule 
and calumny of a vulgar and depraved public taste; surel}' "the 
evil that men do lives after them. The good is often interred with 
their bones." 

Viewed from this standpoint, I repeat that the ceremonial to 
which you have so kindly invited me, is peculiarly grateful to my 
feeUngs as a friend and admirer of Mr. Cushing. I enjoyed unus- 
ual opportunities of forming a correct estimate of his character in 
all of its aspects, and still mourn the loss of a true and steadfast 
friend, an instructive and cultivated companion, and a wise and 
useful fellow-citizen. 

Very truly and respectfully, 

Alex Y. P. Gabnett. 



96 MKMOIUAr; OV CALEB OUSUING. 

I'ltOM IIKNKV WISK (lAlfNK'IT KSi.}. <>K W ASlllNCi'ION , 1>. C. 

lion. John J. Currier, Maijor of Newhuryport. 

WAsiiiNdTON, Oct. C, 1H7!). 
1),.;,,. Sir: - 1 take plcasiiiv in Mckii()\vl('(lo-in<2; your iiiviUtion to 
I..' prcsciil at tiif iiKMiK.rial scrvicf In 1h> held in honor of our l:i- 
mi'uU'd rcll()\v-<'ili/.fii and tViciid. Hon. Caleb ( 'iisliiiio-. It would 
fiivo WW or,>at pleasure to aeeepi the invitation, and he one of those 
asstMuhled to do iionor to the meniorv of m son of whom your city 
may well l>e pioud, and hoping that it would he in my power to 1)0 
present, I ha\c |)()stponed answei'in^' your eai'd until now; when 
llnding- that 1 shall he unai)le to leavi' tliis city, 1 am eoinpeUod to 
roLiretfuUv deelin*' ; in so doini;-, however, let me assure you, and 
throngh you the ( ouneil of your city, of my hiii,h :ipi)reci:ition of 
\(>ur and their eourtrsy in plaeine; me amon<>- the friends of lion. 
Caleh Cushing, hy the invitation, and my full symi>alhy with and 
desire of purtici|)ation in all honor to his nuiuiory. With the 
warmest sentiments of esteem, 1 am, my lU'ar sir. 

Yours very truly, 

IIenky Wisk (tAUNETT. 



KUOM KKV. AlA)N/.0 11. QUINT 1>. I). OK DOVKK, N. 11. 

Boston, Mass., Oct. C, 1879. 
Hon. John J. Currier, Mayor of Newhuryport. 

Dear Sir: — 1 at'knowledge the kind courtesy of an invitation to 
tlie memorial st'rviee in honor of lion. ('alel> ('ushin<;'. I extreme- 
ly reu'ivt that my al)sen(H' from Dovi-r prevented my rei-eiving the 
invitation until to-day. and 1 he^ vou to t'xeuse the apparent delay 
in reply. I aeee[)t the invitation with ii;ratitnde, and with sincere 
respect for the nu'mory of the distiiiLiiiished man whom tin- city 
;ind nation honor. 

\'ery respectfully yours, 

Alonzo H. Quint. 2i 



LETTERS EROM INVITED GUESTS. 97 

FROM >rK. .lAMKS WOUMI.KY OK WASHINGTON, 1). C. 

His Honor, Mayor Chwrier, Newhuryport. 

Washington, Oct. 6, 1870. 
DcMi- Sir : — I lime icccivcd \ our kiinl invitation to bo proBCMit 
at a memorial scrNicc in (•onim('m()ra1i<;n ol' the life and ciiaracter 
of the laic Hon. Caleb Ciisliing LL. I). 

I ro<j;rel tlial it will be iinpossibh; foi- me t<^ l)e |)resont. I have 
fbrvvar<U'<l to yon a portrait wliieh I shall l)e pleased to present to 
your eity as an humlde tribute; of my respcict and <!st(!(!in for your 
great townsman, tlu; late ll(ni. (Jaleb (lushing \Aj. 1). 

Ke-spectfuU}' yours, 

Jamks Wokmlkt, 



FROM HON. WILLIAM WILLIAMS, MAYOU OF GLOUCE8TKR. 

y\ MEMXJRIAL TRIBUTE. 

His c(jnstant quest, renown, by land and sea ; 
riis city's motto, Terra marique. 



or recrent exits, in this nineteenth age. 
You've seen depart the scholar, saint, and sage.* 
Your proto-mayor we no longer see, 
But fain would c(!lebrate his memory. 
In vari(<l learning, languages and law. 
Hanks high our country's honored counsellor; 
Noted amid its magnates, stands his name 
Inscribed w(;ll up the sparkling roll of Fame, 
As legislator, soldicu', — ii(;'er at ease, — 
This iSolon, Caisar, and Demosthenes, 
Acts well his part, whatever be his role, 
Semper paratus animates his soul, 
.\nibassador or statesman, he shrinks not, 
Rut, scores his mark, whatcs'er may be his lot. 



*Dr. Richard S. Spofford. 

13 



98 MEMORIAL OF CALEB GUSHING. 

Mexico, China, Switzerland, and Spain, 
Witness the grand achievements of his brain. 
His choice pnrsuit is sober, earnest thought. 
He wooes Minerva, much as Plato taught. 
Half-mast your colors, and your ensigns dip. 
Death flashes on the deck, and wrecks the ship ! 
He stills the tongue, dissolves the nuptial knot. 
His silent mandate, erst,— Ties, come to naught! 
Snaps envy's halliards, prejudice becalms,— 
The heart beats freer, and the bosom warms ; 
Merit advances, eulogy begins, 
P'ierce calunmy retreats, and justice wuis. 
Prompt, kind, and faithful to his gentler half,— 
Ora y sievrpre, their epitaph : 
Near fifty years, this jurist kept his vow. 
As all who've seen tliat touibstoue, then and now, 
Can testify. Tt was this great man's pride, 
To keep his troth and talents, side by side. 
He kept them thus, till life's last breath was spent, 
And his sad friends nnist rear his monument. 
Peace to thy shade, distinguished Cushing, peace I 
Thy brilliant, active mind can never cease. 



FKOM JOHN (i. WHITTIKK, OF AMESBUKY. 

Hon. John J. Currier, Mayor of Newbury jjort. 

Amesbury, Mass., 10th mo. 13, 1879. 
Dear Friend : — It is a matter of real regret that I ftiiled to see 
thy note of invitation to the memorial services of my old friend 
Caleb Cushing, until after they had taken place. It would have 
been a satisfaction to me to have been present on that occasion. 
1 am very truly thy friend. 

John G. VVhittier. 



APPENDIX. 



'■/ 



BIOGEAPHICAL SKETCH/ 



Caleb dishing was born in Salisbun^ Januaiy 17, 1800, and was 
descended from an old colonial family of distinction. His ftither, the 
late Mr. John N. Gushing, an enterprising and wealthy merchant, 
moved to Newbury port in the year 1802, where the family has since 
resided. He was fitted for college l)y Mr. Michael Walsh, a noted 
teacher, who then had a private school in Newbur^^port. He en- 
tered Harvard College in 1813, and graduated in the summer of 
1817, being the third scholar in his class. 

Having made choice of the law for a profession, he immediately 
entered the Harvard law school and remained one year, and then 
finished his law studies in the office of Mr. Ebenezer Moseley, a dis- 
tinguished lawyer in Newburyport. He was admitted to practice 
as attorney in the Court of Common Pleas at the December Term, 
1821, and at once began his professional career in Newburyport. 
For the next dozen years his attention was given to law, literature, 
and politics. 

While preparing for admission to the bar, he was some time tutor 
in Harvard College ; translated Pothier's famous treatise on mari- 
time contracts, adding illustrative notes, and writing a memoir of 
the author; delivered an oration on the fourth of July, 1821, in 
Newburyport, and wrote articles for the North American Review. 
He also acquired the French, Italian and Spanish languages, and 
became an expert in botany and mineralogy. 



*Tliis brief biographical slcetch was written by Charles W. Tuttle Esq., of 
Boston, Mass., who is preimring an extended memoir of Mr. Gushing for the 
Massachusetts Historical Society. 



102 MEMORIAL OF CALEB CUSHmG. 

In January, 1822, lie became associate editor of tlie Herald, a 
local semi-weekly newspaper, and was a constant contributor to the 
editorial columns while that connection lasted. His hterary reputa- 
tion soon led to his writing- articles, chiefly historical and political, 
for nearly all the best periodical publications in the Atlantic states, 
besides the North American Review to which he was a constant 
contributor for twenty years. He also wrote many .pieces of poetry 
which found then- way into newspapers and magazines of that time. 

He was elected a member of the school committe, and served in 
that capacity for several years, In August he dehvered a public 
address before the Washington Light Infantry, and two years later 
was commissioned lieutenant in that company. 

In August, 1824, Gen. La Fayette visited Newburyport, and Mr. 
Gushing was one of the committee of reception on that memorable 
occasion. In November he married Caroline Elizabeth, daughter of 
Mr. Justice AYilde of the Supreme Judicial court of INLassachusetts, 
then residing in Newburyport. 

In 1825 he was chosen a representative to the General Court, 
and the year following a senator. In both houses he was con- 
spicuous as a debater, and served on important committees. His 
career in acti\'e political life dates from this period. 

In 182G, Governor Lincoln appointed him judge advocate of the 
second division of the Massachusetts militia ; and he immediately 
distinguislied himself in a case tried before a court-martial held at 
Ipswich. He wrote and published a vigorous argument in favor of 
the claims of the citizens of the United States on Denmark, an 
effort said to have had the distinction of being refused admission into 
the Danish kingdom, wliile it was applauded by all Americans. At 
Lynn he dehvered a Masonic address which was received with much 
favor, and printed. 

On the death of Mr. John Adams and ]Mr. Thomas Jefferson, 
both on the same day, the citizens of Newburyport requested Mr. 
Cushing to deliver an eulogy on the lives and characters of these 
illustrious men. He accepted ; and his tribute to their memory 
gave great satisfaction to all parties, adding much to his own rep- 
utation as a public orator. In the autumn he issued a small vol- 
ume entitled. "The History and Present State of the town of 
Newburyport," a work that he had projected several years before. 

He was now admitted a counsellor of the Supreme Judicial Court, 
the highest rank at the bar, and argued his first case before that 
court, Mr. Webster being his opponent. He formed a law partner- 



BIOGRAAPIOAl. SKETCH. 103 

ship with the late Mr. Robert Cross of Newbiirvport and it con- 
tinued for several years. 

in October he was nominated foi- representative to Congress by 
a republican convention, largely representing the commercial and 
manufacturing interests of that congressional district. It was said 
in favor of Mr. Cushing, among other things, that he was an able 
debater, and that he favored the recoNcry of our foreign claims, and 
legislation to protect our domestic industries. But Mr. John Var- 
num of tlie same poUtical party and congressional district, had been 
one term in Congress and given general satisfaction, and was entitled 
to be nominated again according to the usage in such cases. Mr. Var- 
num's friends were surprised and offended at the introduction of 
Mr. Cushing as a candidate at this time, and they bent all their en- 
ergies to defeat him. A short and personall}' bitter political campaign 
ensued and Mr. Varnum was re-elected. It is worthy of note that 
Newburyport, Salisbury and Amesbury each gave Mr. Cushing 
large majorities. 

In 1828 he wrote and published an elaborate review of the ques- 
tion, then much discussed b}' the public, of the right of Universal- 
ists to testify in courts of justice, maintaining that this religious be- 
lief was no disqualification. He was again this 3'ear, and the fol- 
lowing, a representative in the General Court, at the same time 
serving the town as moderator of public meetings and as selectman. 

For several ^ears his health had not been good, interfering much 
with his professional and literary vocations. Much of it was un- 
doubtedl}' due to uninterrupted application to business and studies. 
The remedy for this was rest from such labors. A visit to Europe 
seemed most likely to restore his health, besides giving him the 
benefit of foreign travel and observation. In June, 1829, he and 
Mrs. Cushing sailed for Holland. They travelled at leisure through 
France, Spain, and England, studying together the manners, mon- 
uments, and history of those countries, and reached home in Sep- 
tember of the following year. Mrs. dishing, a year or two later 
printed, for private circulation, two volumes containing letters 
which she had written to her father during her travels in France 
and Spain. Mr. Cushing wrote two volumes entitled, •• Reminis- 
cences of Spain," a country and people tliat always excited his 
interest and imagination. 

On the fourth of July, 1832, he delivered an oration before the 
citizens of Newburyport and took occasion to discuss the 
question of nullification, then so rife in South Carolina. With 



104 MEMORIAI. OF CALEB OUSIIlNa. 

August came an event that can-ied sorrow to his heart and home. 
riis'^acconipHshod wile died after a short iUness, just as she had read 
the Uist proof sheets of her book on France and Spain. 

In Oetober he was nominated for representative to Congress, 
but declined to accept the nomination. 

Tiie next year he wrote two vohunes entitled, •' Review, Histori- 
cal and Political, of the late Kevolution in France." It was his 
fortune to be in France during the famous " three days revolution," 
and to receive information from many persons concerned in it. 

He was representative to the general coui't in 183o, and 1834. 
During the latter year he made a very celebrated speech on the 
Bank of the United States, and on t\w I'cmoval of the Public De- 
posits, a matter then pending in Congress. 

In May, 1834, Gen. LaFayette died ; and no where was his death 
more lamented than in the United States. Public eulogies on him 
were delivered in many states. An association of patriotic young 
men in Dover, New Hampshire, requested Mr. Gushing to deliver an 
eulogy on La Fayette in that town, and he accepted the invitation. 
His eulogy was soon after printed, and widely read. 

In November he was elected representative to tlu; twenty-fourth 
Congress of tlie United States, and thrice in succession afterwards. 
Mr. Cushing's congressional career is a ])rilliant and famous one ; 
and it forms a part of the i)olitical history of that period. There 
was no great public question Ijcfore Congress while he was there, 
that did not interest him, and did not receive illustration at his 
hands. He was at once placed on the House Committee of Foreign 
Aflairs, and remained there during the eight years he was in Con- 
gress. Mr. John Quincy Adams and Mr. Gushing were alternately 
at the head of that committee 

The bi-centennial of the settlement of Newbury oc(Hirred in May, 
1835, and the event was appropriately celebrated, Mr. Gushing de- 
livering the oration. Mr. Edward Everett and many other distin- 
guished gentlemen were [)resent. 

In the presidential campaign of 1840, he was an active and ear- 
nest supporter of Mr. William Henry Harrison for president. He 
wrote a summary account of the life and services, civil and militar}', 
of the whig candidate. In August his constituents in Newbury- 
port gave him a [)ubli(' dinner, on 'which occasion he and Mr. AVeb- 
ster made political speeches favoring the election of INIr. Harrison. 
The attendance was large and great enthusiasm prevailed. 

Tlie death of l^resident Harrison in the year 1841, soon led to a 



BIOGRAPHICAL SKETCH. 106 

rupture in the Whig party. Mr. Tj'ler, vice president, who suc- 
ceeded to tlie office of president, failed to sustain the pohcy of his 
party. Mr. Gushing was one of several members of the House 
who stood ])y Mr. Tyler and his administration. 

In October. 1842, his constituents and others in Newburyport in- 
vited him to address them on the subject of the proceedings of the late 
session of Congress, and also on the affairs of the nation. He ac- 
cepted, and made a speech justifying the acts of the administration 
and his own political course in Congress. 

At the close of his fourth term in Congress, in March, 1843, the 
president thrice nominated Mr. Cushiug for secretary of the treas- 
ury, and the Senate as often refused to confirm the nomination. In 
May he was appointed commissioner to China, and envo}' extraor- 
dinary and minister plenipotentiary of the United States to the 
court of that empire. His mission was to enter into diplomatic re- 
lations with that government, and to negotiate a commercial treaty 
between the two countries. 

In August, 1843, he sailed for Alexandria in Egypt, proceeded 
over land to Bombay, and there was taken on board the United 
States frigate Brandy wine and carried to China. 

The purposes of his mission were accomplished in six months 
after his arrival in that empire. He then set out for home by way 
of the Pacific Ocean and Mexico. Arriving at Accapulco he cour- 
ageously took a land route across the continent, and was robbed and 
plundered while on the way, not an unusual experience with trav- 
ellers in that country. 

The commercial treaty which he negotiated was approved by the 
Senate, and continued in force many years without change. For a 
long time it was a model for other treaties between China and the 
commercial nations of Europe. 

The annexation of Texas was one of the measures of Mr, Tyler's 
later administration, and was supported by the Democratic party, 
with which Mr. Cushing had now become identified. On the 
breaking out of the war with Mexico, in May, 1846, an event 
which soon followed annexation, the President called for a single 
regiment of Massachusetts Infantry ; but such was the opposition 
to the war that at the end of the year the regiment was still incom- 
plete, Mr. Cushing was a representative in the General Court 
which assembled in January, 1847. On the second day of the 
session he offered a resolution appropriating S20,000 to equip this 
regiment, and supported it with a masterly speech. A large oppo- 

14 



106 MEMOIUAL OF CALEB OUSHIN^G. 

sition ciiine diicotly forward to oppose it. After a debate, cover- 
ing a period of about three weeks, the resolution was defeated by 
an overwhehiiing majority. 

While the resolution was pending in the House, and even before, 
Mr. dishing was actively concerned in organizing the regiment, 
contributing money I'rom his own i)rivate means. On the fifteenth 
of January, the conninssioned olllcers assembled and elected him 
colonel of the regiment. He accepted, although he was aware that 
the president designed to make liim a ])rigadier gejieral in the 
army. His friends in IJoston presented him a sword, and the 
ladies in Xewburyport a ring. 

Mr. Cushing left lor ^Mexico in .March, his regiment liaving pro- 
ceeded him. In April he was commissioned brigadier general. 
The conquest of Mexico was well nigh accomplished before he 
reached the theatre of wai'. It fell to him to command important 
posts, and to take i)art in important courts of military inquiry, lie 
.was in no action while in Mexico ; l)ut he showed cai)acity tor mili- 
tary conunand. and was noted as a strict disciphnarian. 

In September. 1S17. while lie was still in ^Mexico, the Di'mocratic 
Convention held at Worcester, nominated him for g(neruor of the 
Connnonwealth, and he accepted, writing his letter of acceptance 
i\\m\ Vera Cruz, in the month of (Jctober. Wliile the party made a 
gain of over nine thousand votes, Mr. Briggs, the Whig candidate, 
was again eU>cted by a large majority. 

"Mr. Cushing returned from Mexico in July. Ib-l.'^. and on his 
arrival in Xewburyport was greeted l)v a large number of his 
felknv citizens, and with a salute of one hundred guns. A week 
later he made a speech in Market Hall, giving his views of the late 
war and its results. In the autunm he was again nominated b^' the 
Demot-ratic State Convention for governor of tlu' Connnonwt'alth. 
-Vt that time no popularity, and no civil or military distinction 
I'ould elevate a Democrat to the gubernat(n-ial ollice of iNIassachu- 
setts. 

In 1851 he was representative to the General Coui't, and took 
a leading part in the legislation of that year. While there he pro- 
cured the charter giving Newburyport a city government. The 
devices on the city seal were suggi'stetl by him, and he was 
elected the first nuiyor. In June of the same year he was elected 
connnander of the Ancient and Honorable Artillery C(>mi)any of 
Boston, and served in that capacity one yeai". 

In May, 1852, Governor Boutwell appointed him Associate Jus- 



BIOGRAPIIICAI. SKETCH. 107 

tice of the Supreme Judicial Court of Massachusetts, and he ac- 
cepted. When he first went to Congress, seventeen years before, he 
substantial!}' gave up practice of the law. Many thought this a 
disqualification for so responsible a judicial station : but they were 
surprised to find that lie showed as much familiarity with law and 
practice as if he had come directly from the bar. 

His judicial career was short — less than a year; for in March, 
1853, President Pierce selected him for the place of Attorney-Gen- 
eral in his Cabinet, and he accepted without delay. He immediate- 
ly resigned his seat on the liench of the Supreme Court and entered 
on the duties of his new station. For a period of four 3-ears he 
devoted himself to the business of his oflice. The three volumes 
which contain his official opinions are regarded as a monument to 
his capacity, learning, professional attainments, and great and un- 
wearied industry. 

On his return to Newburyport in April, 1857, after four years 
official residence at Washington, his friends extended to him a 
hearty welcome. It was an occasion when all classes of citizens 
united to manifest their appreciation of his great public services. 
In response to an address of welcome he made an able and inter- 
esting speech which was received Avith favor and applause, 

Plis return to private life led him to return to his profession 
again. His abilities as a lawyer were now known and recognized 
all over the country, and his professional services were in demand, 
especially in matters litigated in the United States courts. In Sep- 
tember he opened a law office in Boston, and resumed practice 
of the law which he never wholly gave up during his life. 

The public agitation of the slavery question led him into political 
discussions. He was sought after from all quarters, to address 
public assemblies on this subject and other political questions. He 
made many political speeches, and wrote many letters, during the 
period which ended with the breaking out of the civil war. 

In 1858 and 1859 he was a representative to the General Court, 
taking an important part in the proceedings of the House. 

Mr. Cushing was a delegate to the National Democratic Conven- 
tion held at Charleston, South Carolina, in April, 1860. to nomi- 
nate a presidential ticket. He was elected president of the Con- 
vention ; and for more than a week presided over the deliberations 
of an excited assembl}', divided into Northern and Southern democ- 
racy, into Douglas and anti-Douglas parties. After balloting many 
days no result was reached, neither party showing the least disposi- 



108 MEMORIAL OF CALEB GUSHING. 

tion to yield to the other. The cronveiition then adjourned to meet 
in Bivlthnore in June foHowhig-. 

The convention agiiin assembled pursuant to adjournment, and 
proceeded to ballot for a candidate lor president with no better 
result tlian before. Soon Southern delegations began to withdraw 
from the convention : and on the sixth day, the delegates of a ma- 
jority of the States of the Union, either in part or the whole, had 
ceased to participate in llie pi-oceedings of the convention. iMr. 
Cushing then made a brief speech, resigning tlie presidency of the 
convention, and soon after withdrew, as did fourteen others of the 
delegation from Massachusetts. Upon this further secession from 
the convention, the Douglas party prevailed, and nominated Mr. 
Stephen Arnold Douglas for president. 

The delegates that had seceeded soon met in auotiu-r hall in lial- 
timore and elected 3Ir. Cushing president. This convention im- 
mediately nominated Mr. .lohn (.'. Breckenridge for president of the 
United States, and dissolved. Mr. Cushing supported the nomina- 
tion of j\Ir. Breckem-idge, and took an active part, foi- the last time, 
in a jiolitical campaign. lie used every means and every argument 
hi his power to stay civil war, but to no purpose. 

The Avar having come at last, he took his position with tire North, 
and olfei'ed his services to Ciovernor Andre^v. They were most 
univindly rejected . 

^Ir. Cushing continued to devote himself to his pi'ofession, still 
keeping a law otlice in lioston. He was representative to the Gen- 
eral Court in 1<SG2, and IJ^lio, and took an active part in the legisla- 
tion of those years. In politics he was neutral. He acted as 
seemed to him best, without regard to party. 

In I8(i4, President Lincoln api)ointed him to represent the gov- 
ernment before a mixed commission appointed t(^ li(]uidale certain 
claims of Great Britain against the United States. 11 is profession- 
al employments had now come to be almost wholly of a public char- 
acter. His large acquaintance with international law, and with the 
federal relations between the States, made him a veiy useful advi- 
ser ol the several departments of the government. 

In 1866 he removed 1(j a tine estate in Virginia, near A\ashing- 
ton, where he continued to reside for the next ten years. I'resi- 
dent Johnson had this year appointed lum one of the connnissioners 
to eodily the laws of the United States ; but he soon relinquished 
this service on account of more pressing engagements. 

In November, 1868, he was sent by the United States on a 



BIOGRAPHICAL SKETCH. 109 

special mission to the United States of Columbia, to negotiate with 
that government a treaty concerning a ship canal across the 
Isthmus. He accomplished the object of his mission and returned 
home early in 1869. 

In 1H70 the Mexican government appointed him Advocate, to act 
for that Republic before a mixed commission sitting in Washing- 
ton, to adjust claims between Mexico and the United States. In 
January, 1872, he resigned this employment to accept an appoint- 
ent to act as one of the counsel in behalf of the United States before 
the tribunal of Arbitration, between Great Britain and the United 
States, authorized by the recent Treaty of Washington. 

This appointment was everywhere hailed with applause. His 
eminent fitness to. deal with all public questions that might arise 
during the progress of the hearing before this international tribunal, 
was recognized by all who had any just conception of his powers. 
That he made a distinguished figure before that august tril:)unal, 
and acquitted himself to the entire satisfaction of his own govern- 
ment, are well known to all. 

On his return to the United States, in 1873, he wrote a volume 
entitled, '' The Treaty of Washington, its Negotiation, Execution, 
and the Discussions Relating thereto," which was printed here and 
also in France. His criticism on the action of the English Arbitra- 
tor, Lord Cockburn, attracted much attention here and in England. 
In January 1874, President Grant appointed Mr. Gushing minis- 
ter to Spain, and the Senate confirmed the nomination. This ap- 
pointment was hardly made when the chief justice of the Supreme 
court of the United States died. The president hastened to nomi- 
nate Mr. Cushing to fill this vacancy on the Supreme bench. It was 
an appointment neither solicited nor expected by him. Fortliwith 
came a cry of protestation, mainly from the abolitionist element of 
the Republican party that ncA^er forgave him for his active opposi- 
tion to them. The objections urged agaiust him were political. 
His capacity and juridical learning no one ventured to question. 
Mr. Cushing requested the president to withdraw the nomination, 
and without delay went on his dii)lomatic mission to Spain. 

He made a short visit to the United States in tlie summer of 
1876. Returning to the imperial court of Madrid, he remained 
there until February, 1877, when he resigned and came home some 
months later. His diplomatic career was a successful one ; and his 
official residence in Spain agreeable to him. 



110 MEMORTAL OF CALEB GUSHING. 

Although nearly eighty years of age, the venerable statesman 
appeared as strong and vigorous as he did at sixty. 

He noAv took up his residenee at Newburyport. among his fellow- 
citizens. Avho I)ade him welcome. He was steadily employed in pro- 
fessional matters till within a few days of his death, which occurred 
on the eveiiiuu- of Januarv second. 1879. 



PROCEEDINGS OF THE GUSHING GUARD. 



The Gushing Guard is an ancient military organization in New- 
burj-port. It originated in 1774, being a voluntary association of 
persons interested in military exercises. Next year the town voted 
to accept its services, the war with Great Britain then just breaking 
out. This company formed part of the artillery force under Gen. 
Sullivan in the campaign of 177H, in Rhode Island. It continued 
an organized independent artillery company after the war ended. 
In the war of 1812 it was called to do coast guard service, and was 

very useful. 

In 1820, a higher social element having control of its action, it 
formed a constitution and assumed the name, " Newburyport Artil- 
lery Company." A new career of prosperity and usefulness dates 
from this epoch. 

In 1834, the Washington Light Infantry, long a rival military or- 
ganization, disbanded, and many of its members joined the Artil- 
lery Company. Mr. Cushing delivered one of his early public ad- 
dresses before this Light Infantry company, and was at one time 
a sergeant, and later a lieutenant in it. 

In 1844, the Artillery Company changed its name to Washington 
Light Guard. In 1852, during the mayoralty of Mr. Cushing, the 
name of the company was again changed to " The Cushing Guard," 
in honor of the distinguished mayor. 

In 1855, the Cushing Guard became annexed to the Massachusetts 
Volunteer Militia, and formed company A, in the eighth regiment, 
where it now remains. 

When the civil war broke out in April, 1861, it was the first to 
start for the theatre of war, on the call for Massachusetts troops, 



112 MEMOKIAL OF CALEB OUSHING. 

and did heroic service tiiere. Captuiii All)ert W. Bartlett, wlio com- 
manded the company, fell in the memorable battle of Antietam. 



At a speci:il meeting ol" the ('ushin<>; Guard, held at their armory, 
Friday evening, Jan. .')d, 1S71), Captain David L. Withington pre- 
siding, the Ibllowing resolutions were adopted : 

NViiKKiCAs in the death of Caleb Cushing our city loses a citizen 
who has lionored her in the highest degree, and IVoni her deserves 
the highest honor in I'l'tnrn ; and 

WiiKKEAs in his death the Cushing (iuard losi's a lifelong friend, 
whose name it is our higli privilege lo i)(>rpetuate, and the militia of 
Newbnryport a p;ist nnMul»ernnd ollicer who claims our highest trib- 
ute of respect, 

Hksoi.vki), That this be an expression of our lieartfelt sympathy 
to liis relatives in the sudden loss of onv who though full of years yet 
l)romise(l long to remain in (he (piiet enjoyment of the family cir- 
cle after a life-absence in tiie pursuits of public atlairs. 

Rksolvki). That in the event of a i)nblic funeral the company 
tender their services as escort if desired. 

Kksolved, That a copy of these resolutions l)e forwarded to the 
family of the deceased, :ind entered on the records of the company. 

The conipau}' also voted to havi' tiieu' armory draped in mourn- 
ing on the day of the funeral. 



PROCEEDINGS IN THE GENERAL COURT. 



In the House of Representatives on January 3, 1879, Hon. John 
I. Baker of Beverly, announcing the death of the late Hon. Caleb 
Gushing, said : — 

Mr. Speaker: — An American statesman is dead. Caleb Cushing, 
one of the most distinguished of the many distinguished sons of old 
Essex, is no more. But the record of a memorable life remains as 
a part of the history of his state and country. His great industry, 
learning, and patriotism enabled him to render most valued public 
service, ))otli at home and abroad, and that often in some of the 
most critical periods of our history. Beginning the record of his 
public life in this Hall more than half a century ago, and continu- 
ing in the pnl>Uc service during all the years of a long and useful 
life, it seems fitting that here there should be paid a brief tril)ute to 
his memory. And as the senior nieml)er of this House, and a citi- 
zen of Essex county, who enjoyed the accpiaintance of the distin- 
guished dead during nearly all of his public life, I have felt called 
upon to offer the following i-esolution : 

Resolved, That the house has learned with regret of the death of 
the Hon. Caleb Cushing. a man whose great talent and attainments 
were an honor to this Connnon wealth and es})ecially to this house, 
of which he was often and long a member. For more than half a 
century his Avonderful powers were given to public work; and the 
representatives of the people only do tlieir duty in recognizing his 
devotion to their services. 

Judge Kussell of Boston then said : — 

Mr. Speaker: — I hoped that some older memljer would have 
followed our friend from Beverly and have spoken full}' of the abil- 



114 MEMORIAL OF CALEB GUSHING. 

itv tuul attaiiiiiu'uts of the great inaii wlio lias departed from earth. 
His woiulerful powers and his vast public services are familiar to 
us all. But I would rather say a \v(^rd on some jjoiuts less familiar. 
It is good to recall the fact that in the evil days Caleb Gushing 
stood on the rtoor of Congress side by side with John Quincy 
Adams, contending lor the insulted right of petition. Well do I 
recollect tlu^ glowing lines of Whittier demanding that Massachu- 
setts should recall them both, ''the old nuin eloquent" and the 
voung, from an assembly not worthy of such men. You all know 
that when civil war (irst threatened our country General Cushing 
addressed the people of his native city for poitions of three days on 
the wrongs inflicted upon tlu' South by the North. But it is not so 
well known that he started for Charleston intending to give the 
complement of that speech — the wrongs i-eceived by the North troni 
the South ; studying the things that should make for i)i'ace. It 
was too late lb)' that address to be delivered, but it is well to re- 
member to-day that Mr. Cushing had the heart to try to make it. 
When war actually broke out Ceneral Cusliing promptly otfered his 
services as a soldier. Tiie oti'er was i-efused : but no less truly did 
he serve his country, for the wliole inexhaustible armory of his 
brain was always at her service in defending her against her ene- 
mies at home and abroad. All departments at Washington, and 
especially the State department, freely received his iuv.-duable 
advice. It shows where he stood, that he spent one evening of 
every week at the house of Charles Sunnier, holding high counsel 
with him for the preservation of the lluion. 

But I would speak more esi)ecially of one of Mr. C'ushing's acts 
while he was Attorney-Ueneral. The Dred S<'ott tlecisiou had 
denied United States citizenship to coIoihhI men. As a I'onse- 
quence of this decision, no colored man could receive a i)ass|)ort. 
At this time a i)Oor and worthy citizen of Boston, Dr. John S. 
Rock, desired to visit Paris for a surgical operation, which the 
famous Louis alone was thought competent to perform. But, as 
Orsini had just made his attempt on tlie life of Louis Napoleon, to 
go to France without a passport was to (inter a French prison. 
Both our excellent senators tried to obtain a passport for Dr. Eock, 
but they tried in vain. He came to me in despair, and asked whether 
his life must l)e sacrificed to a wretched legal quibble. I ai)pcaled 
to Attorney-CTcneral Cushing, and almost by return mail he sent 
the passport, with a request that tlu' alfair shiuild be kept secret. 
And it was kept secret until it had ceased to be perilous in America 



THE GTBNERAL COURT. 115 

to do justice and love mercy. I do not know bj- what ingenuity 
Mr. Cusliing obtained tlie document, but I do know that it must 
have been at the risk of his place in the Cabinet. You will all be 
glad to learn that he was great enough to run that risk for the sake 
of a poor, humble black man. I hope that as he lay, slowly and 
quietly falling into the sleep of death, he saw the face of the poor 
man whose life he had sought to prolong. I hope he saw another 
face, and that he heard a voice, saying: "Inasmuch as ye have 
done it unto the least of these, my brethren, ye have done it unto 
me." 

Mr. Charles J. Noyes of Boston followed Mr Russell and spoke 
substantially as follows : 

There is an old legend that above the battle-field where a great hu- 
man triumph has been achieved and grand deeds wrought, the souls 
of the dead heroes were wont to hover and to sanctify the field ; and 
so I think we can feel, in view of the departure of Caleb Cushing, 
and standing in this chamber, so often dignified and ennobled by his 
presence and his work, that the soul of Calel) Cushing might well 
this morning be hovering over our heads calling upon us to do 
grand work for this Commonwealth, upon whose escutcheon his 
fame and his name have shed so imperishal)le a glory. Coming, 
Mr. Speaker, from tlie county to wliieli lie belongs, upon whose soil 
I am proud to say I was cradled, I feel it impossible for me to sit 
silent at this time and permit this resolution to i)ass through the 
House witliout giving it my second. A nation is apt to send its best 
men into tlie world ; it is apt in sending to other nations messengers 
of mercy, bearers of glad tidings, or for the achievement of great 
service, it is apt to send its best men. Often has it been the good 
fortune of this nation to send Caleb Cushing across the water as a 
messenger from America ; and to him, Mr. Speaker, belongs the 
proud distinction that, sent to the people that live by the gateway 
of the day, he achieved that first triumph, by virtue and by force of 
which the Chinese wall was broken down and commercial relations 
commenced betw(>en that people and ourselves ; and from that time 
to tliis he has contributed in every department of learning, of sci- 
ence, and of statesmanship, such grand results, that, marching to 
the victor's crown, he bore in his arms most glorious sheaves. 

The resolution was then unanimously adopted and the house ad- 
journed. 



PROCEEDINGS OF MASS. HISTOEICAL SOCIETY. 



JANUARY MEETING, 1879. 

The stated monthly ineetuig was held on Thursday, the 9th 
instant, at 11 o'clock a.m. : the President, the Hon. Robert C. 
Winthi-op, in the chair. 

The President announced the death of two Resident Members 
and one Honorary Menilier, and said : — 

In turning to announce the death of the Hon. Caleb Cushing, J 
ma}' not forget that he, too, was counted among the lineal or col- 
lateral relations of our celeljrated Boston minister. John Cotton, 
and that it was by the hand of our lamented associate, Mr. Brooks, 
that he presented to our archives, a few years ago. a nuinuscript 
volume, illustrating the Cotton Family, which had been elaborately 
prepared, at his instance, and at his expense, by his friend the late 
Mr. Somerby. The volume is on our table this morning, and will 
henceforth l)e associated with the menKuy of two of our number, 
whose deaths have l>een so nearly coincident. 

Of Mr. Cushing's career it will be ditlicult for me to speak satis- 
factorily within the narrow compass of remark which Ijetits such an 
occasion as the present. He had held so many public otlices, and 
labored in so many diversified lields. that nothing brief or summary 
could do liim any sort of justice. 

A graduate of Harvard University witii higli rank at the early 
age of seventeen, in a class which included not a few celebrities 
among the living as well as among the dead, he was allowed l)ut 
six or seven years in the study and practice of the law before being 
called to enter the Legislature of Massachusetts as a Representa- 



MASSACHUSETTS HISTORICAL SOCIETY. 117 

tive from Newbun^jort. The very next year, 1826. saw him a 
Senator of our Commonwealth at twent^'-six years of age. From 
that tune to this he has been a public character, often in high 
official station, and hardl}' ever without some direct or indirect 
relation to public affairs. 

As a representative in Congress for four terms ; as the first 
Mayor of Newburyport, after it became a city ; as one of the jus- 
tices of the Supreme Court of Massachusetts for at least a year ; 
as Attorney-General of the United States for four years ; as Com- 
missioner to the Celestial Empire, in which capacity he signed the 
first treaty between the United States and the Emperor of China ; 
as one of the counsel of the United States at the great Geneva 
Arbitration ; as Minister Plenipotentiary to Spain ; and as again 
and again a member of our State Legislature, — a position to which 
he seemed never reluctant to return in the intervals of other em- 
ployments, — in these and other ways he has certainly gone through 
as great a variety of responsible and conspicuous public service as 
has ever, I think, fallen to the lot of a Massachusetts man. 

But not even this enumeration comprises all the labors and ser- 
vices, official and unoffficial, which he undertook and discharged. 
He had an earh' passion for militar}" studies and pursuits ; and on 
the breaking out of the war with Mexico, in 1846, he found at last 
an opportunit}^ to gratif}^ this passion and turn these studies to 
account. He raised a regiment of volunteers, and equipped it 
mainl}^ at his own expense. I remember receiving a letter from 
him at that time, — while I was in Congress myself, and when I 
had happily succeeded in carrying through an appropriation for 
compensating his services in China, — in which, after thanking me 
warmly for my efforts in his behalf, he added, "The money will 
come quite seasonably', as m^- regiment is making a great gap of 
upwards of $5,000 in my peeuliiun." He served in Mexico to the 
end of the war, and came home with the rank of Brigadier-General. 

It is well known that he offered to undertake the raising of 
another regiment for the defence of the Union in 1861. That oflfer, 
however, being rejected bv Governor Andrew, he betook himself, 
not long afterwards, to Washington, where he found ample occupa- 
tion in the civil service of the country, in connection with more 
tlian one of the Departments of Government. 

I have said enough to give a vivid impression of the many-sided 
and marvellous capacity' for work, which was the preeminent char- 
acteristic of Mr. Cushing. He was, indeed, a man of wonderful 



118 MEMORIAL OF CALEB GUSHING. 

vorsutility, of pro(liji;ious intellectual and physical enrlurance and 
energy ; with no taste for recreation, no wiUingness for rest, and 
who seemed to iind a positive Inxury in every fresh field of labor 
which was opened to him. 

1 cannot forget that of the twelve membei's of the House of Rep- 
resentatives of the United States from Massachusetts, when I first 
entered Congress in December, 1840, the death of Mr. Cushing 
leaves me the only survivor. There were John Quincy Adams, 
Levi Lincoln, Leverett Saltonstall, George N. Briggs, of Berkshire, 
and John Reed, of Yarmouth, with others hardly less notable. 
Webster and John Davis were in the Senate. A more distin- 
guished delegation neither Massachusetts nor any other State has 
ever sent to Washington, before or since. 

I was thus associated with Mr. Gushing, at Washington, as a 
colleague and a friend, for several successive years, and was in the 
way of observing closely his peculiar qualities as a debater and a 
statesman. Dittering from him far more frequeiitly than I could 
agree with him. :ind by no means prejudiced in his favor, 1 was tdl 
the more trustworthy witness to his varied ability, his A'ast acquire- 
ments, his unwearied application, and his force and skill as a Avriter 
and speaker. Nor would I forget the many amiable traits of char- 
acter which prevented differences of opinion or of party from sun- 
dering the ties of social intercourse. He knew how to abandon a 
pohcy, or (piit a party, without quarreling with those wh(mi he left 
behind. And so 1 can speak of him, and remember him to-day, as 
a friend. 

^Ir. Gushing was ele(;ted a member of this Society in 1859. He 
had written in his y(nith a History of Newliuryport, a volume or tw^o 
of Reminiscences of Spain, and an elaborate Review of the influen- 
ces of the Three Days' Revolution in France. But. in later years, 
lie was too busy, and too often absent from home, to take any part 
in our historical work, or even to attend our meetings. His name 
was added to our roll as the name of one who had himself become 
Historical, and who had played a distinguished part for half a centu- 
ry in the atfairs of our Gonunonwealth and Country. — as an em- 
inent scholar, a powerful writer, an accomplished diplomatist and 
jurist. Dying on the verge of his seventy-ninth yeav, he leaves the 
records of a crowded life to l)e studied by some future biographer. 

Jt only remains for me to submit in Itehalf of the council of the 
society, the customary resolutions : — 

Resolved^ That the Massachusetts Historical Society have heard 



MASSACHUSETTS HISTORICAL SOCIETY. 119 

with deep regret the anuouncement of the deaths of the Hon. Caleb 
Cushmg and William G. Brooks, Esq., *and that the President be 
requested to appoint two of our associates to prepare Memoirs of 
them for some future volume of our Proeeedings.f 

The President called first upon Mr. George B. Emerson a mem- 
ber with Mr. Gushing of the Class of 1817, who spoke substantially 
as follows : — 

As I had the good fortune of being intimately -loquainted with 
Mr. Cushing from the time when we entered college together in 
181,3 until his election as one of the representatives of Massachu- 
setts in Congress in 1835, it is perhaps natural that you should ask 
me to say a few words in memory of those early days. 

Mr. Cushing was in scholarship the most distinguished member 
of our class. After graduation, he was for several years a faithful 
tutor in the College, and during all this time it was my privilege to 
see him constantly. We had, I remember, a common place of ex- 
ercise in Professor Everett's garden. T recall, too, with great de- 
light, a vacation spent in Cambridge, in company with four other 
friends, at the end of our Junior year. We met for breakfast, 
then separated for our several studies, coming together again at the 
noon dinner. Many afternoons were spent in long walks. We made 
the acquaintance of all the plants within a radius of several miles from 
the College. And at night we studied the heavens together, learn- 
ing nearly all the constellations then visible. Of all these Mr. Cush- 
ing retained for many years an almost perfect knowledge. Nor did 
he neglect or forget our botanical studies. His collection of 
plants, which I had the pleasure of seeing only a few years ago, was 
one of the best ever made in Essex County, or indeed in the State. 
Mr. Cushing had a marvellous facility for acquiring languages, and 
knew many, some uncommon ones, well. It is said that his ac- 
quaintance with the Tartar langague was so perfect that during all 
his residence in China as the representative of our government the 
services of the interpreter were not once needed. He was an om- 
nivorous reader, devouring books in all languages ; and he never 
forgot what he had once read. 

My memory brings back to me many agreealile recollections of 



*\Villiam G. Brooks Esq, a resident member, died January, (5, 1879. 

tAt the stated meeting of tlie Society held in February, President Win- 
throp appointed Charles W. Tuttle Esq. of Boston to prepare the Memoir oj 
Mr. Cushing. 



120 MEMORIAL OF CALEB GUSHING. 

my friend, ono of tlic most cultivated and afeomi)lislKMl talkers that 
ever lived. For three years of our ('ambridge life, the Sunday eve- 
nings of each week were sjjent in President Kirkland's parlor, 
where with hiseliarming family and Mr. Everett the time was pass- 
ed Willi great pleasun; and i)rofit. 

The President tlieii called upon Mr. Charles W. Tuttle, Esq. of 
Boston, who said :— 

1 knew the late Caleb Cashing too well, and 1 revere his name 
Mixl nu'inory too highly, to venture to si)eak of him without studied 
preparation. Ills charactei' and his career are too illustrious for 
brief and indiscriminate eulogy. I cannot, however, on this solemn 
occasion, when we have paused in our labors to pay the customary 
tribute of respect to the memory of our venerable associate, the 
gi-eat and highly gilted statesman, so recently gathered to his fath- 
ers, refrain from giving some leminiscences of him. 

I do not I'ememlxT that I ever heard of the late Mr. Cusliing 
lu'lbre he was selected for th.e memoral)Ie dij-'loinatic mission to 
China, about thirty-five years ago. I was then a mere youth, and 
resided in New Ihunijshire. Suddi'nly. as it now seems to me. his 
nanu' was in every ucwspa[)er and in e\ei'v housi'liold in the town, 
uttei-ly extiugiiishiug the already waning excitement occasioned by 
the great comet and the delusive pro[)hecy of the end of the world. 
All tongues weic speaking of the novelty and magnitude of his 
foreign mission ; and of his great and various learning, unsurpassed 
eloquence, line address, and distinguished personal ai)pearance. 1 
very well icm.'miji'r the |)ride witii whit-h s(jrne persons ivlated in- 
stances of having seen him and lu-ard liim speak on public occa- 
sions. From what was then said of him, 1 was prepared to see a 
\*'ry remarUaitle man. wheni-vt'r that might be. 

Fifteen years elapsed l)et"ore 1 had the pleasure of nu'cting INIr. 
Cnshing. They were the most menioralile years of his whole public 
life. During this period, he had .achieved distinction in diplomacy, in 
war. in high judicial ollice. and in the Cabinet of I'resident Pierce. 
Wlu'n he returned from Washington where he had been during four 
years in the cai)acity of Attorney-( ieneral of thi' Cnited States, I 
liad Just iH'gun my pi'ofessional can-er, and had settled in Newbury- 
[)ort. One day I was sur])rised with a visit tVom Mi-. Cnshing on 
some mattei-s concerning a suit in court, lie was then verging on 
thrt'escore years of age. while he appeai'ed not ;d.)ove lifty. with as 
tine an intellectual countenance as I had evei' seen. His mental 
vigor, wealth ol' information, facility of expression, accuracy of 



MASSACHUSETTS HrSTORICAL SOCIETY. 121 

thought, logical statement, and rich clear voice impressed me that 
he was a far more extraordinary' man than I had supposed him to 
be. Not long after, his private secretary, Mr. Spofford. foi'med 
with me a law partnership : and we had our offices in Boston, 
where Mr. ("ushing joined us and shared our chambers. From this 
time to his decease, a period of about twenty years, I had the 
honor of his acquaintance and friendship. 

Mr. (Jushing was endowed with extraordinary intellectual powers, 
with an uncommonly fine physique and a vigorous constitution. 
Externally, natui'e had stamped him as a man of distinguished 
charactei-. Such was the great versatility of his talents that he 
could Hiasler, with equal facility, any subject. Had he so deter- 
mined, he might have gone down to posterity one of the great 
scientists <»i' the gieat philologists of the age, as he has a great 
jurist and statesman. His capacity and equally great memory, his 
unwearied industry, his scorn of delight, and love of laborious daA^s, 
enabled him to conquer all knowledge. I know of no subject of 
intellectual contemplation that lay outside the raTige of his medita- 
tions and studies. Like Bacon, he took all knowledge for his 
province ; and like Bacon he aimed to find employment for his 
great talents and learning in the administration of the chief public 
affairs of the State. His name was already a popular synonyme 
for extensive culture and vast ei'udition when T first heard it men- 
tioniul. 

Mr. Cushing was eminently a man of action as well as of specu- 
lation. His long career in the theatre of public affairs, often in 
high stations, shows this to be true. Various and diversified as 
were his i>ublic employments, he discharged them all with consum- 
mate al»ility and with the highest reputation. The lustre of his 
gi-eat nam(^ now gives a new dignity and importance to the stations 
he once tilled. The late President Pierce told me, not long before 
his decease, that ]\fr. Cushing could have filled any place in his 
Cabinet with as nuich ability and reputation as he did that of 
Attorney-Geueral ; and that his eye ranged over all the affaii's of 
the govermueut. 

He was extremely fond of public life. Even after he had 
achieved a national reputation, he was often a member of the Mass- 
achusetts Legislature. It was lamentable to see him. with all his 
experience, great abilities, and culture, employed about aflfairs so 
far Ijelow him, and not always above the i-each and capacit}' of the 
average of men. His legislative career, howevei-. is not without 

16 



122 MEMORIAL OF CALEB CUSHESTG. 

disliiu'tion : iiuuiy r»'lbnu:it<)iT statutes and wise nieasures are due 
to his eti'orls. 

His faculty of nu'inon was astonishing. It was susceptible, 
retentive, and rctidy. Whatever once got there never came away, 
and never became impaired. It came forth at his bidding, and 
many are tlie instances where an antagonist has been suddenly 
overtiu-own and cruslied by weapons promptly furnished from the 
vast storehouse of his memory. It was seldom that I repeated a 
familiar quotation where he did not instantly point out the inac- 
curacv of my memory in some inconsiderable matter, so accurate 
was his own. His maxim always was that whatever is worth re- 
membering is worth remembering accurately. 

He was a <'reat linguist. He was mastei- of tlu^ modei-n pAiropean 
lanauaoes. and spoke several with as much grace and ease as he 
did his own vernaculai-. The late Spanish Vice-Consul at this port, 
who was at Madrid when Mr. Cushing arrived there as Minister of 
the United Stat(;s. told me that the Imperial Court was amazed to 
hear Mr. (Jushing speak its language with the ease and accuracy of 
the best Spanish schohirs. — a rare accomplishment, scarcely ever 
found amonu' the Aml»assa(lors from B^uropean (Tovernments to that 
Court. His ricli :ind deep-toned voice must have contributed nuich 
to the charm of his conycM-sation in that si^norous language. 

Mr. Cushing was extremely methodical, as nmch so in what he 
did as in what he said. Nothing ruffled lum so uuicli as ilisorder. 
No ofiice clerk ever folded and tiled away letters and documents 
with greater care. He would not sutler a book to lie carelessly on 
his table. Once I found him in his room in Washington in a high 
state of excitement o\er a confused statement in an important doc- 
mnent. He declared that all the troul)le in the world could be 
traced to confusk)n in the minds of men. and supported his proposi- 
tion with abundant illustration. 

He required less sleej) and rest than any one 1 ever knew. He 
rose at sunrise, and wrought all day and half the night. He was 
the first to be found in the Athenaeum and at his office in the morn- 
ing, and the last to leave in the evening. His study lamp waxed 
not dim at midnight. There was no time wasted in frivolities and 
anuiseinents. With these hal)its and good health, during a long 
life, it is not surprising that he arrived at so great knowledge and 
learning, and comprehended and executed with the greatest facility 
the highest functions in the government. 

He was a tirui patriot. There was no act or thought of his life 



MASSACHUSETTS HISTORICAL SOCIETY. 123 

that was not intended for the glory and renown of his country. If 
he diflered from others as patriotic as himself, it was regarding the 
means, not the end. Little is j^et publicly known of his great ser- 
vices to our Government in its foreign relations since the breaking 
out of the civil war. He was at the bottom of many excellent 
State counsels during this time in which his name does not appear. 
That he was one of the most eminent publicists and diplomats of 
this period in America. I suppose, is not doubted. In the latter 
capacity, he may be compared with a Temple and a Gondomar. 

As a jurist he had few equals. During the last twenty years of 
his life he was counsel in many of the greatest causes that came 
before the United States Supreme Court. — causes involving ques- 
tions of the highest public concern. New questions, growing out 
of our complex system of government, always fascinated him. 
His analytical mind and l>ruad intelligence found scope for exercise 
in these employments : and he had the whole country for his 
clientage. 

In conversation lie was (extremely brilliant and effective ; es- 
pecially so if he encountered the least opposition. Woe be to 
him that dared maintain a general proposition against Mr. Gushing 
on such occasions. Distinctions, reasons, arguments, and authori- 
ties, organized and formulated by his logical and acute mind, 
poured forth incessantly until nothing was left of his combatant or 
his proposition. On these occasions, as well as in public debate, 
the breadth and variet}' of his attainments shone with great lustre. 

Notwithstanding his long and varied pubhc career, that shyness 
and diffidence, so manifest in his youth, never entirely wore awa}'. 
It made him avoid contact with men and society all his life, and 
narrowed the circle of his friends and acquaintances. He had none 
of the arts of popularity. He never would descend to be ever}'- 
body's humble servant, a qualification now so requisite for a suc- 
cessful pohtician. His native dignity, his culture, and his employ- 
ments alike forbade it. These traits especialh- led the public to 
judge him to be cold and exclusive. 

Unfortunately for him, he never was a good judge of men, — for 
the reason that he never mingled enough with them. Sometimes 
persons unworthy of his favor or consideration were successful in 
forcing themseh'es ui)on his attention, to the great regret of his 
friends. 

He was always accounted ambitious, aspiring to high places in 
the Government, as if that were a reproach to a man universally 



124 MEMORIAL OF CAI>EB OUSHING. 

allowed to be statesuian t'lioiioh to giiicU' a nation ! If" he were am- 
bitions, there is ancient authority that ambition is the inlirmity of 
noble minds. I believe no one living thinks it lessens his merits to 
have it said tliat lie received light and strengtli from Mr. Onshing. 

While lu' i-eceived every one with tlie greatest kindness and 
i-onrtesv. and conversed with the greatest animation and pleas^ure, 
he had no strong social feelings. He formed no intimate personal 
friendships, — a great misfortune to liim. in my view of his life. 
His joys and sorrows were locked in his own breast. He lived 
(luietly and temperately in a line old mansion adorned with works 
of the gri'ati'st masters, and witli a fine libi-ary. in a kind of stately 
solitude. Thciv was a Ivoiiian severity and simplicity in his life 
and character. I never heard him mention the landsca})e, or any 
of the beauties of nature, witli any enthusiasm. He took a si)ecu- 
lative oi- pi'actical vii'w of i-very thing around hiin. His mind was 
occupied with forces and |)()wers. He was not, however, without a 
good deal of humor and i)leasantry at times. There was no haugh- 
tiness in his composition. 

No man ever yielded more readily or more cheerfully to a re- 
quest for his iiiHuence or favor than Mr. Cushing. I know that he 
many limes did olliees of friendship to persons who knew not from 
whom they were derived. A memorable instance of his disinter- 
ested kindness is the letter which {)layed so important a i)art in 
preventing his being Chief .lustice of the Sn])rcme Court of llie 
United States. 

He submitted with grace and dignity to the dreadful storms of 
fierce and malignant censure of his actions in public life, now and 
then hurled upon him. He knew it was the penalty imposed on 
men in his station. A sadness, liowever, rested on his majestic 
features : but he was as unmoved as a tower in the desert. 

T cannot forget one occasion, many years ago, Avhen his intpiisi- 
tive mind found supreme satisfaction in speculations concerning 
celestial phenomena. Immediately after the optical discovery of a 
small star near Sirius. the most brilliant of the fixed stars, making 
a new binary system in the annals of astronomy, Mr. Clark, of 
Cambridge, appointed an evening and invited me to come and look 
at the little stranger through the same great telescope with which it 
had l)een first seen, and to bring my friends with me. Among the 
distinguished gentlemen of the party was Mr. Cushing, then a 
member of the Legislature. He gazed with thoughtful admiration 
on the new stellar system, as well as on the inaonificent nel)nla in 



MASSACHUSETTS HISTORICAL SOCIETY. 125 

Orion. The evening was extremely beautiful, the sky clear and 
serene. The powers of that ah'eady famous instrument brought 
clearly to view these splendid phenomena. It was apparent that 
what he saw made a deep impression on his mind. Not many days 
later he made a short speech in the House, which attracted public 
attention on account of the fine astronomical allusion in his argu- 
ment. AVith great i)ropriety he had drawn a parallel between this 
stellar system in the depths of space, and our political system then 
being tested in the civil war. 

Tliere is no question but that this i-emarkablo man will make one 
of the most distinguished figures in the history of this age. The 
annals of our country furnish few names distinguished for so many 
and varied accomplishments. Tlic public stations he filled of 
themselves appear small in the general estimation of such a man. 
His title to future eminence does not rest on them. 

He is now beyond the re.'ich of envy or malice. His life, a long 
one, burned to the socket. His system was not racked with pain 
or disease, but worn out. On Mondiiy afternoon last, I was one 
of tlie melancholy train that Ibllowed his remains to their last rest- 
ing-place on the l)anks of the Merrimac. where his e3'es first opened 
to this world. His lifeless features had assumed all the manly 
beauty and coiii])osiire which they had at the period of his middle 
life. 

" He was a scholar, and a ripe and good one, 

Plxceeding wise, fair spoken, and persuading; 

Lofty and sour to thera that loved him not: 

But. to those men that sought him, sweet as summer." 



PROCEEDINGS OF THE U. 8. SUPREME COURT. 



'I'lic Bmi- of the Supreme; Court of the United States met in the 
Court-room, in the Cn})itol, Washington, on Friday morning, Janu- 
ary 10, 1H711, at 11 o'clock, to pay respect to the memory of the 
late Cal('l) Cusliing. 

On motion. Hon. WiUiani M. Evarts was a])pointed Chairman, 
.ind Mr. I). W. Middleton. Secretary. 

Mu. PiuLLirs. — .Mr. Chairman : I move that a committee of six 
be appointed to draft resohitions expressive of the respect of the 
members of tliis Bar f'oi- tlie memory of the deceased, to be pre- 
sented to this meeting. 

The motion was agreed to, and (he following gentlemen were ap- 
pointed by the Chair to constitute the committee : 

Committee on. Resolutions. 

Mr. rnii.u' Phillips, Chairman : 
Mr. Charles Devens, 

Mr. ROSCOE CONKLINCi, 

Mr. Albert Pike, 

Mr. A. T. Akerman. 

Mr. Ceoroe II. Williams. 

The connuittee thereupon retired ; and, on returning, reported, 
through Mr. Phillips, tiie following resolutions for adoption. 

Resolved. That the Bar of the Supreme Court of the United 
States has beiMi informed with deep regret of the death of Caleb 



RUPKEME (^OUKT OF THE UNTITED STATES. 127 

Gushing, for many y^'ars their Hssocinte as .in alilc |)iu('titi()ner be- 
fore this Oonrt. 

liesolved, That whiU' the nienioiv of Mr. ('ushing (h'serves to be 
clierished as a citizen and a soldier, as a scholar and a historian, as 
a statesman and a diplomatist, tlie Bar (U'sires especially to remem- 
ber liim to-(hiy as a wise leji;islator, as an a('(;oniphshed pnblicist, 
and as a profound and learned lawyei'. whose services in all these 
capacities have been most honorabU' to himself and most valuable 
to the liei)ublic. 

liesolved, Tliat the Attorney-(xeneial l)e i-eqiiested to conununi- 
cate these I'esolutions to the Court, and to move that they be en- 
tered of record. 

Resolved, That they be communicated to the family of Mr. ('ush- 
ing, with tlie expression of the earnest condolence of the liar. 

Thk Cuaihma.\. — Gentlemen, you have heard the lesolu lions re- 
ported l)y the committee. They are before the meeting. 

RicMAKics OK Mit. (tk,<)U(;i.; II. Williams. 

Mu. CiiAiKMAN : I rise to second llio resolutions and to say that 
in the deatli of Caleb Cashing a great man has fallen. Few men 
living or dead in the Unitecl States have had a moie rlistinguished 
or varied (career. More than tifty years ago his abilities attracted 
the public eye and were acknowledged by the public voice. Dui'ing 
that time a mighty })rocession of events has passed into the history 
of oui- country, all of which he saw. and a part of which he was. 
Mr. Cushiiig was remarkable for his great wealth of learning. lie 
dis(!ussed questions in the light of tlu' experience and history of all 
ages and nations. He drank deeply at the fountains of ancient 
lore, as well as from the various streams of modern literature. His 
speeches in congress, as early as 1835, were models of erudition 
and ehxpience. His opinions as Attorney-General of the United 
States, delivered before 185(i. are still cited as authorities in the 
highest courts of the (»untrv. 

He contributed largely to the [jublic and diplomatic writings of 
the country, and always with great power and exhaustive learning, 
and his late mission to Spain was highly creditable to himself and 
to the country. 

Mr. Cnshing pursued his purposes in life with indomitable energy 
and industry. He never seemed to weary with intellectual work. 
His fine natural abilities and his immense acquisitions of knowledge 



128 MEMORIAL OK CALEB CUSIUNCi. 

made him in cvorv sonso uu abU' and accouiijlisliod man. 1 enjoyed 
the pU>asnre of liis acquaintance foi- about lifteen years. I have 
met him in private and personal interviews, at the festive board and 
Mt ihc Bar of the Svipreme Court, and tliouuh at times he hxeked 
tliat coiidcnsatiou and clearness of thou<>lit and cxi)ressioii which I 
have observed in some others, he always and everywhere impressed 
me" with the variety, extent, and richness of his intellectual re- 
sources. 

Distiuiiuished as he was in other Avays, his fame will chiefly rest 
upon his rei)utation ;is a lawyer. T remember when, more than 
thirty years aji'o. 1 connnenced the practice of my profession upon 
the western banks of the Mississippi, he was then and thei'c known 
as a iireat lawyer, and if litiii'atioii from that section was transferred 
to Washiniiton. it was iiXMierally supposed that the battle was more 
than half won l>y tiie party wlio secured the professional services of 
Mr. Cushinj;-. 

Oui' departed friend was an illustrious link in the chain, now too 
fre(piently brokt'U by deatii. which connects this o'eneration with the 
founder;^ of tlu' Re))ulilic. Mis eyes ojjened upon the dawn of 
the nineteenth century. He lived when John Adams was President, 
ami the heroes of the Revolution were in the cabinet and councils 
of tile nation, lie conuneneed to live when our star of emj)ire had 
just risen u[)on the eastej'n horizon, and he continued to live till he 
saw its benienant rays illumine a mighty continent of free and in- 
telligent iieople. Three score years and ten. to which limit lew 
livi'S attain, did not apparently imi)air the vigor of his mind or dim 
the brightness of his eye. but insidious time was slowly smothering 
the vital spark, and upon the \-erge of four score years of active, 
useful life, he gently and })eacelidly departed to his rest, like one 
lying down to pleasant dreams. 

One after another in rai)id sut-cession tiie venerable men who have 
come down to us tVom the early days of the Republic are passing 
iVom our view, and while the Angel of Death with his shadowy 
hands transfers their mantles to our shouhh'rs. history waits with 
anxiety to see if we are worthy to wear them. 

1 will not. because Mr. Gushing is dead, say that he was ])erfec- 
tion, nor will 1 seek to drag his frailties from their dread abode, 
•lustice and Charity appeal in vain for a triie estimate of the mo- 
tives and actions of public men. while Calumny can fill the public 
ear with its malicious clamor ; but the tongue of Caluumy is para- 
lyzed at the open grave, and Justice and Charitv can then be heard. 



8DTK.EME COURT OF THE UNITED STATES. 129 

Happy indeed will tlie man be who can come down to the end of 
his days, after fifty years of public life, and leave in his history as 
nnu'h to admire and as little to condemn, as is found in the life of 
(Jaleb Cushing. To-day we are called upon, though the mortal re- 
mains of our i)rofessional brother lie in a distant State, to think of 
him not only in the pride and glory of his manhood, but as he now is 
— to think of the closed eyes, the pallid brow, the folded arms, and 
the awful stillness of death. While we give him up to the shroud, 
the coflin, and the tomb, and turn to the business and pleasures of 
life, it is a melancholy satisfaction to feel that we have forgotten 
his faults, whatever they were, and can only recall those qualities of 
his life and character which '- smell sweet, and blossom in the 
dust." 

Remauks ok Mr. ALBEiix Pike. 

Mr. Chairman : He wh(jse death lias called us together here was 
one who, during a long life, served his profession and the Republic 
faithfully, and was crowned by each with high honors. 

As he won those honors fairly, so he wore them gracefully ; and 
with every one earned, renewed his exertions to deserve more ; less 
desirous, I think, to win, than to have the right to, applause and 
glory. 

"He belonged," it has been said since his death, '• to a past gen- 
eration." But Caleb Cushing did not lag superfluous on the stage, 
for it is but a little while since he retired from the service of his 
country at a foreign court, to find rest and pursue his studies at 
home ; and none of us have grown much older since he rendered to 
his country at Geneva the most important service of his life, and 
displa^'ed in amplest measure his ability and learning. 

It is true, no doubt, that towards the last he lived more with the 
past than with the present, We all do so, as the shadows lengthen 
for us, in the evening of our life. It is true, no doubt, that for 
him, as for all of us who are old, the faces most loved were those of 
the unforgotten dead friends. But he who has lived worthily, has 
lived not for his own age only, but for all the coming generations ; 
for his thoughts live after him, and his example and his influences. 
Upon the tpmb of Crushing there will 1)C no blank i-ocord of hours of 
indolence and folly. 

He was one of those, who (I use in part Mic words of Holinshed), 
for their singularities of energy and U'arning. for their honor and 
government *in and of the State, about this Capitol and elsewhere, 

17 



130 MEMORIAL OF CALEB GUSHING. 

at houu' and aluoail, (k'si-rvi' sufh cuinmoiiilalioiis, tlial llicv nicrit 
)ni'eo si</ii((i'i lapillo. 

1 knew Mr. Ciishiiiu- wIumi I was a l)(>y. lie was a young lawyer 
then, lesi.liiU' to win sueet'ss ; and often passiuu- his oMlee. as 1 did. 
late al nigiil. 1 always saw it liiililed up. llr lost lew hours in 
sleep, and wasted none in dissipation or aiuuseineut. To that iiu- 
tirinji' industry and diliti't'ut study he owed the lauie of.aller years. 
lie aeeoutri'd himself, carefully ami (horoui;hly. I'oi" the husiuess 
autl the battU' of lih'. and entei-ed the ari'ua armed at all jjoints. 

1 was not yi>t t>f the aije to \oU\ when he had beeome so well and 
and favoral>l\ known as to Ik- an almost successful candidate for a 
.seat in the (V>ni>ivss of the United States, lie was already among 
the forenu>st of the rising young men of Massachusetts. 

After I attained manhood, 1 knew him as a st-holar of varied ae- 
qnireujents, a man of letters, of genius ;ind cultivated tastes ; one, 
in the words of tlu> biographer of Sir Henry Wotton, "excellently 
educated, and studiou.s in all the liberal arts ; in the knowledge 
whereof he attained unto a great perft'ction." 1 knew him as a re- 
viewer, essayist and poet ; neitlier. in the wrnds of the sauu' writcM', 
•• an uncomely nor an nnproiitable emi)loynient for his age." For 
he did not contiue his studies, then or ever afterwards, to the great 
province of the law alone, but sought and achieved distinction in other 
tields. His industry was great, and his reading immense. I do not 
know to what extent he was familiar with the writers of lvon\e and 
(-ireece, nor that he ever sought to e\[)lore the mysteries of Orien- 
tal learning; but he made himself familiar with the best writers in 
more than one modern language, and spoke some tluently, so as to 
V)e deemed abroad "a gi'ntleman excelh'ully accomplished both by 
learning and travel." 

The records of the country i-ontain the evidence of his (lualilica- 
tions to serve the country. H(> nevt>r engaged, I think, in anything, 
in which he did not acquit himself well. Whether a person, or the 
Kepublic. or a foreign government was liis client, it was never said 
that he had not powers eipial to the task that he had midertaken ; 
and no cause, priAate or [)ublic. ever suriered t'ronr his want of al)il- 
ity. of knowledge, or of industrious preparation and energetic con- 
ducting. He served the country and his other clients faithfully and 
fearlessly. 

Nor did any reproach, through him. ever come upon the profes- 
sion ; for he never forgot either its duties or its [troprit'iies. ameni- 
ties, and courtesies. 



SUPREME COURT OF THE UNITED STATES. 131 

Later in life. I knew iiim in Mexico, when lie served there with 
credit in command of a Brigade. Afterwards I heard him at the bar 
of the Supreme court here, knew him as a legislator, and had occa- 
sion at times to see him in his office of Attorney-General. 'J'here- 
after the currents of circumstances carried me in another direction, 
and from that tim(i until his death I seldom saw him. Nor had I 
ever an acquaintance so intimate with him as to be able to speak of 
his temper and social qualities, his fiuilts or virtues, as others can 
who knew him better. 

Attached at different times to different political i>arties. he had 
the singular good fortune never to suffer under any grav(^ imputa- 
tion uttered by the rancorous tongue of Varty or the Press. Xor 
did lie ever. I think, display a vindictive spirit, or pronounce harsh 
and bitter judgment even upon those who maligned him. He 
always seemed to me a man of equalile tem[)er, amiable, kindly, and 
placable, of a most persuasive beha\'ior and Judicious discourse. 

He was a man, ambitious, no doul)t, •• not rejecting honors and 
stations in this courtly and splendid world," but descending to no 
low arts to obtain hon(jrs : one not of haughty carriage, nor who 
put slights upon other men esteemed below him : a man of no pomp 
or pretence, of grave simplicity. '' of an ancient freedom and integ- 
rity of mind." 

1 was. a little while ago, in the old town on the river Merrimac, 
where his home was all his life, and there heard him often spoken of 
by many, old and young, and by all not only with pride, but with 
affection ; and, after all, to whatever heights of honor one may 
climb, and how widely soever his name may be known and honora- 
bly mentioned, it is th(? good opinion, and the good word of those 
among whom he was reared and under the eyes of whom he has 
lived his life or tlie larger part of it, of his fellows-townsmen and his 
neighl)ors, that are the truest testimony' of his desert and the most 
to be \'alued praise wherewith he can V>e crowned. 

It would be idle affectation to I'esoit to phrases of regret and sor- 
row, in speaking of the death of one who, after a singularl}^ fortu- 
nate life, prolonged beyond the usual span, and in full possession of 
all his honors, has lain down in peace to await the resurrection, ac- 
conjpanied to the grave by the kindly thoughts of all his neighbors, 
spoken honorably of throughout the Republic, and with none whose 
opinion is worth regarding to fling a stone at his memory. He did 
not need a longer life. He had done enough for his country, 
enough for his own fame, and onlv death was needed to crow'u and 



132 MEMORIAL OF CALEB CUSHTNG. 

complete his work. It is death, cliiefly, that gives authority and 
power to the wise thinkers and great writers, the profound jurists and 
incorruptible magistrates, and makes them the law-gi\ers of states 
and nations. And if tlie great profession of the law would be hon- 
ored by its servants, it must pay honor and do justice to their memo- 
ries when they enter upon their inheritance of authority and immor- 
tality. It is to perform that otfice that we have come together. 



Remakks ok Fkaxk W. Hackett. 

Mr. Pkesii>ent : A great lawyer, after more than half a century 
of untiring labor, lias been gathered to his people. The bar of this 
court, who have admired his transcendent abilities, and now miss 
his ftimihar face, seek to place upon the recoi'd an expression of 
their sense of the magnitude of the loss they are called upon to 
sustain. In keeping with the occasion, it is left to the elders in the 
profession, who have known liim longest, to pronounce a just esti- 
mate of his character. Permit me, however, to say a word or two 
in behalf of the younger members of the l)ar. in testimouj' of the 
re\erence and kindly leeling with which we liold him in memory. 

To those who were by many years his junior in practice, IMr. 
Cushing uniformly extended a genei'ous aid and encouragement. 
His storehouse of legal knowledge he freely j)laced at their disposal, 
lie pointed out defects, and gave to merit due and judicious praise. 
Young men went to him for counsel. Young men liked him ; he un- 
derstood them. Himself full of vigorous activity, in one sense Mr. 
Cushing never grew old. To a marked extent he harljored that 
youlhfnl spirit, " quod qui sequitiir senex corpore esse poterit, a)h 
Imo nunquam erit." 

It was my privilege seven years ago to accompany abroad Mr. 
Cushing in the capacity of private secretary, while he held the posi- 
tion of senior counsel foi- the United States before the Tribunal of 
Arbitration at Geneva. Tlie relation I considered invaluable as an 
opportunity for mental discipline and legal training with a consum- 
mate master in the law. Of his eminent services to his country in 
that forum I will say nothing ; it has become historical. Yet it is no 
disparagement to you. sir, or your able associates (both happily 
now living in tlie enjoyment of the higliest honors of the Republic) , 
to recall the fact that to .Mr. Cushing especially the (Government at 
that anxious period looked as to a tower of strength. But I can 



SUPREME COURT OF THE UNITED STATES. 133 

testify that his world-wide reputation as an indefatigable worker is 
in no sense an exaggeration. With him memory was, indeed, a the- 
saurus of all subjects ; _yet when he drew upon it for his facts, the pre- 
cision and accuracy with which he marslialled them to his use, was 
simply' wonderful. So orderly were the workings of his mind that 
nearlj" all that portion of the argument of counsel assigned to him, 
he dictated at continuous sittings, and scarcely a line required re- 
vision. 

Of his unbounded love for the acquisition of knowledge I may 
venture to cite a single instance. He brought to Geneva an ac- 
quaintance with the history of that locality — minute, and what to 
most men would have appeared ample. Not content with this, he 
got together and read in brief intervals from professional works, all 
sorts of books and pamphlets bearing upon the subject in veriest 
detail, till soon it became apparent that no citizen (I am tempted 
even not to except the professional antiquary,) could surpass him 
in the extent and variety of his information in this department. 

But my chief purpose is to utter a word expressive of the grati- 
tude with which we of a younger generation delight to honor the 
memory of Mr. Gushing. Doubtless many years will elapse before 
another leader at the bar displays talents worthy to be compared 
with Iris. But we may not forget the lesson his career plainly 
affords. Great as were his natural gifts, he improved every waking- 
hour to keep them in constant use. May we fail not to apply our- 
selves with something of his ardor to the duties of our profession. 
•' Seest thou a man diligent in his business, he shall stand before 
kings." 

Remarks of H. ^Y. Garnett. 

Mr. Chairman : As my friend who has just taken his seat has 
said, I do not thinlv it is unseemly, but highly proper, that we, the 
junior members of this bar, should express our feeUngs of admira- 
tion for Mr. Gushing.. It is not however, sir, as statesman, diplo- 
mat, or lawyer that I desire, or, indeed, possess the power of speak- 
ing of him ; in all these branches he has achieved success known to 
but few even of those who devote their undivided laliors to a single 
pursuit ; to speak of these successes belongs more properly to oth- 
ers older than I, to whom they are well known from experience, 
desire to speak of Mr. Gushing as I knew him, as a man of kind 
heart and generous impulses. 



134 MEMORIAL OF CALEB GUSHING. 

We all, sir, view our fellow-men from the particular sides of 
their characters which are presented to us, and he was to me "a 
guide, counsellor, and friend." I knew him well ; I may say he was 
a friend by inheritance, for from my earliest days I have heard the 
name of Mr Gushing coupled with terms of friendship and regard. 

He was not a man who •• wore his heart upon his sleeve," but 
towards his friends there was no inconvenience, no labor, no trouble 
that he was not willing to undertake and undergo to serve them. I 
speak, sir, that T know. I have been with him also in his labors, 
and while laborious himself, he over exhibited that regard towards 
the efforts of others, that thoughtfulness to prevent them from 
over-exertion, which could only be dictated by a kindness of heart. 
And, sir, 1 rise to-day not to offer any tribute worthy to be laid 
upon his tomb, but to say these few feeble words as an expression 
of that gratitude which I owe, and which I shall ever feel toward 
the memory of Mr. Caleb Gushing. 

The resolutions were agreed to unanimoush' ; and thereupon, on 
motion of Mr. Attorney-General Devens, the meeting adjourned. 



SUPREME COURT (3F THE UiNITED STATES. 

January 13, 187.'. 

Present : The Hon. Morrison R. Waite, Chief Justice; 
Hon. Nathan Glifford, 
Hon. Noah H. Swayne, 
Hon. Samuel F. Miller, 
Hon. Stephen J. Field, 
Hon. William Strong, 
Hon. Joseph P. Bradley, 
Hon. John M. Harlan, 

Associate Justices. 

The Attorney-( General addressed the Court as follows : 

Maji it 2>lcuse yoar Honors : 

1 ask a few moments' delay in the i-egular progress of the busi- 
ness of the Court, that I may bring formalh' to its attention the de- 
cease of Caleb Gushing, of Massachusetts. 



SUPREME COURT OF THE UNITED STATES. 135 

The high positions held ])y him in the service of the country, his 
eloquence, his learning and ability so often displayed in the debates 
of this Court, seem to render it proper that we should pause for 
some notice of the void which has l)eeu oecasiojied by his departure. 

At the age of twenty-five. Mr. CUishing was already a distin- 
guished figure in the politics of Massachusetts. Ten years later he 
came into the national councils, and from that time was prominent, 
alike in sunshine and storm, in the long historic era over which his 
life extended. How full that life was of imi)(>rtant and varied pub- 
lic ser^dce will be seen when it is recalled that he was repeatedly a 
member of the legislature of his native State and of our National 
Congress, that he was a Justice of the Supreme Judicial Court of 
Massachusetts, that he was the Counsel of the United States in the 
Arbitration at Geneva, that he was its Foreign Minister at the 
Courts of China and of Spain, that he was the Attorney-General of 
the United States, and that to these civil services he added military 
service as a General in the Army during the war with Mexico. 

In private character, and in social intercourse. Mr. Cushing was 
most attractive. His rare powers of conversation, his large and 
well-digested stores of learning, made him a fascinating compan- 
ion to all who listened to him, while his readiness and cordial desire 
to serve others by the nmltitude of resources at his command, was 
always conspicuous. 

Of his extended public career, of the political controversies in 
which he engaged or into which he was thrown, the present is not 
the time to speak. While one who has tilled so large a space in 
pubUc affairs nmst be judged as his life shall appear when viewed by 
the clear light of impartial history, the hour when he departs is not 
the time to disturb the ashes which have gathered over the slumber- 
ing fires of old and, in many instances, forgotton controversies. 
Nor. were this the time, would this ever be the place for their ap- 
propriate discussion. Yet it is appropriate to remember here, that 
so profound was his knowledge of international law . and of politics 
in the larger sense of the term, that to those Administrations of 
which he was not a member, nor even in direct sympathy, he was 
able to lend an aid, as counsellor in matters of a general character 
as distinguished from those of mere party controversy, which was 
held by them to be great and valuable. 

Elsewhere justice will be done to his merits as an accurate ob- 
server and a graceful writer, to his accomplishments as a scholar 
and a Unguist, and to his labors for the country as one of its states- 



VM) MEMORIAL OF CALEB GUSHING. 

men and diplomatists. Here, and to-day. we would desiiv to recall 
him as the wise and proloiiiid lawyer, whose learning and ability 
liaA'e contrihuted to the diseiission of many of the most important 
(jiiestions of his time. 

His ju(liei;d eai'eer on the Supreme Beneh of his native state was 
lirii'f. liut it was lono- enough to establish his reputation as a courte- 
ous, just, and able maoistrate. Hut his true sphere -as a lawyer 
was tiiat of the advocate'. His intellect was of the controversial 
cast, which adai)ted him for the conflict of the Bar rather than the 
calmer and graver duties of the Bench. Yet. while he was an oi)i)o- 
iient xigorous and persistent, he was always fair and candid. .\s a 
del)ater he was master of every resource. el(H|uent and adroit, always 
speaking from a full knowledge <>f the subject on which he spoke, 
lie spai'cd no laboi- in prei>aration, and his ready powers of acipii- 
sition enabled him to fortily hiuKself with weapons of attack and 
defence drawn from every armoiy and storehouse of the law. The 
Heports of tills Tourt furnish thi' evidence of the ability with which 
he discussed all matters, whether api)earing as counsel for i)rivate 
()arties or for the (Jo\ei'nmeut. The Opinions of the Attorneys- 
General attest how nmch skill and research he brought to those 
practical (questions of administration which, as a cabinet oflicer. de- 
manded fnm) him the judgment of a l(>arned and experienced law- 
yer. Xor should I fail to rememlter that as a legislator, alikt' in 
his native' state and in the congress of the United States, he con- 
tril)uted wisely and generously to that public legislation Avhich is in- 
de))endent of party controversy, even when deejjly engrossed in the 
public contlicts of his time. The volume of the Kevised Statutes 
of the United Slates which lies within reach of the hands of your 
Honors demonstrates his [)atient industry, although from its nature 
it could not testify to his genius as a legislatoi"- By that exhaust- 
i\(' industry wliich would be content with no half-knowledge of any 
subject, but which would master each in turn, he supi)lemented, as 
successive (.)ccasions arose, his large knowledge of the science of 
govi'rnmcnt. of jurisprudence, of e(|uity. of the connnon. the stat- 
ute. ;iud tlu' maritime law, and of connnen-ial and industrial alfairs. 

'I'iie illustrious magistrates who composed this Bench while he 
tilled tile oilicc of Attorney-General have, witii one exception, 
passed away. With some premonition, perhaps, that his own end 
was near (although he did not desist from projects of labor and 
study), j\Ir. Gushing, since his return from :Madrid. a little more 
than a year since, has resided principally at his old home in New- 



SUPREME COUllT OF THE UNITED STATES. 137 

buryport. The anchor of the storm-worn ship was to fall where 
first its pennon had lluttered in tlie breeze. On Jannary 2d, a little 
way from the spot where he had been born seventy-nine jears be- 
fore, he, too, has gone to his i-est in the city which had honored and 
loved him in his youth, his manhood, and his maturer years. 

The Bar of this Court have desired me, in testimony of their re- 
spect for his memory, to submit to the Court the resolutions which 
I have now the honor to read. 

After the reading of the resolutions, Mr. Chief Justice Waite 
replied as follows : 

The prominent position Avhicli Mr. Cushing has occupied in pul)lic 
atfairs during so much of his long life, his great learning, his dis- 
tinguished services as Attorney-General of the United States, and 
his large and varied practice at this bar, make it pi-oper that his 
brethren should be permitted to place upon the records of the court 
their tribute to his memory. The court cordially approves of the 
resolutions that have been adopted, and of the remarks of the At- 
torney-General in presenting them here. What has been said is no 
more than is due to the occasion 

It was m}^ fortune to be associated with Mr. Cushing liefore the 
Tribunal of Arbitration at Geneva, and I should be false to my 
own feelings if I failed to record an expression of gratitude for the 
kindness and encouragement I received at his hands during all the 
time we were thus together. He was always just towards his jun- 
iors, and on that occasion he laid open his vast storehouse of 
knowledge for the free use of us all. While assuming that our 
success would be his, he was willing tliat his should l)e ours. He 
knew how much encouragement can lighten the burden of labor, 
and never failed to give it when opportunity was offered. What- 
ever he may have been to others, to us who _were with him at Ge- 
neva, he will be remembered as a wise and prudent counsellor and a 
faithful friend. 

The resolutions and the remarks of the Attorney-Genei-al in pre- 
senting them may be entered upon the records of the court. 



18 



MEMORIAL MEETING AT WASHINGTON, D, C. 



A meeting of tlie citizens of IMtissacluisetts, sojourning or resid- 
ing at Washington, District of Columbia, was held at the Masonic 
Temple, in that city, on the evening of January 2()th, 1879. Some 
two hundred gentlemen and ladies were present, including some of 
the most distinguished public men of IMassachusetts. 

Mr. George B. Faunce, President of the Massachusetts Associ- 
ation at Washington, called the meeting to order, and after pro- 
nouncing a short eulogy of the deceased statesman whom those 
l)resent had asseml)led to honor, he invited Attorney-General 
Devens to preside. 

Gen. Devens, on taking the chair, eloquently referred to the 
man}' aspects which INIr. Cushing's life presented, and trusted that 
his excellences in every path of life that iie had followed, as a ju- 
rist, as a scholar, as a soldier, as a statesman, as a diplomat, 
would be spoken of that evening. 

^Ir. Benjamin 8. Pike, of Xewburyport, was chosen secretary of 
the meeting. 

Major lien : Perley Foore, of ANest Newbury, otfered the follow- 
ing preamble and resolutions : 

Whereas, it has pleased Almighty God to terminate the mortal 
existence of Caleb Cushing, a citizen of Newburyport, who has 
passed a large ]iortion of the last tifty years of his life at this me- 
tropolis, it becomes us, Massachusetts men, residents or sojourn- 
ers here, to express our sorrow for his loss and our admiration 
for his virtues, his learning, and his public services : Therefore, 

Jiesolaed, That we regard Caleb Cushing as one of the master- 
minds of the Old Conmion wealth. His private life was marked by 
a love of his home on the bank of the Merrimac, by domestic pur- 



MASS. ASSOCIATION AT WASHINGTON. 139 

itj, b}' a high sense of honor, b}' unwearied industry, and b}- devo- 
tion to his kindred and friends. In his long and A-aried public ca- 
reer he was equally distinguished as a profound jurist, an able 
parliamentarian, a ready writer, a gallant soldier, and an accom- 
plished diplomat. His Avonderful conversational powers, enriched 
and adorned by observation and reading in many lands for many 
years, made him a welcome guest wherever he went. He did not 
always agree with the majority of voters in Massachusetts, but he 
always evinced a profound affection for our country, and he was, 
under all circumstances and at all times, read}- and willing to sup- 
port its- government with unfaltering loyalty. He will be missed 
here at the National Ca])ital, and now that he has suddenly passed 
from the theatre of his fame, we and his other fellow-citizens should 
profit by the varied lessons of his eventful career. 

Resolved^ That we sympathize with the surviving relatives of the 
deceased, and with the many personal friends who lament his loss. 

REMARKS OF MAJOR BEN : PERLEY POORE. 

Mr. Chairman : — Having performed the duty assigned to me, 
gratitude for many acts of personal kindness prompts me to say a 
few words concerning the deceased, who was the life-long friend of 
my father and my mother. I was taught in my childhood to respect 
him, and I have always been an admirer of his wonderful talents, 
although I may not have agreed with him in opinions upon the po- 
litical questions of the day. It has l)een my privilege to witness 
much of his illustrious career here at the P'ederal metropolis, where 
he has been for many years a prominent and a picturesque figure in 
public affairs, and where his name has been honorably connected 
with many important measures, foreign and domestic, that have 
exercised a powerful influence upon our national policv. 

Caleb Cushing has been called the " admirable Crichton," of the 
present century, but while he rivalled that famous historical per- 
sonage in versatility, in variety of attainments, and in facility of 
acquisition, he also possessed the stern common sense of the states- 
man and the man of the world. With all his readiness as a debater 
and a writer, however, he never omitted before treating a subject, 
to enter into the most laborious investigations that he might obtain 
a complete mastery of it. He was always ambitious to excel, as 
every man should be, and he was an indefatigable worker, showino- 
great powers of endurance, although he was not a man of stronw 



14:0 MEMORIAL OF CALEB GUSHING. 

physical powers. He never intrigued for honors or for place, but 
lie ever felt that it was his dut}' never to decline public service, even 
when he knew that his nomination as a candidate on a political ticket 
could only be followed by defeat at the polls. Nor was he hampered 
by party ties which so often elevate men possessing small intellects, 
while they trammel and curb great minds. Pi'ide of opinion often 
retains men in the wrong, and keeps them in partisan ranks, when 
conscience and conviction prompt tliem to avow their mistakes, and 
to sacrifice their associations to their judgments. Since Mr. Gush- 
ing first stood in the Capitol, as a representative of the Essex 
North district of Massachusetts, electricity and steam have accom- 
plished marvels, and nearly every brancli of mechanical industry 
has changed — he, witli his wonderful mental acthity, could not 
keep in one poHlical net, l)ut cliaiiged also. With an integrity that 
was never questioned and with an honor tliat was never tarnislied, 
he foiigiit his way in tlie battle of life in accordance with his own 
ideas of riglit and wrong, regardless of the political banner under 
which those convictions carried liim. 

Mr. Cushing's life here at AVasliington, even when he was hold- 
ing high oflicial position, was marked with great simplicity. In liis 
rare intervals of relaxation from })uhlic or professional duties, he 
used to retreat from the busy metroi)olis to a small cottage, pictur- 
(>s(nu'ly situated near tlu; great falls of the Potomac, and later in 
life he hi'came the owner oJ" a farm in AMrginia, where he interested 
himself in agricuhural i)ursuits. He was fond of works of art, 
whiclihe viewed Avith appreciative and discriminating judgment, and 
he had a fondness lor good books, especially those in the many for- 
eign tongues which he read with facility. But his favorite relaxation 
was at the social board, and foitunate was the host who was able to 
count Mr. Cushing as his guest at a dinner party. His inexhaust- 
ible magazine of incident and anecdote concerning remarkable per- 
sons and events ; — his thorough ac(iuaintance with the prominent 
questions of the day on each shore of the Atlantic and of the Pa- 
cilie ;— his keen wit and s[)arkling epigrams' never failed to fascinate 
those who sat at the same table with him. Senator Sumner, in the 
last years of his life, became devotedly attached to Mr. Cushing, 
and fretpiently invitetl him to his dinner parties. The sonorous 
sentences of the senator were illuminatetl by the brilliant comments 
of his guest, which reminded the Ibrtunate hearers of the successive 
discharges of a Roman eaiidle, each so bright and dazzling that it 
was dillicnlt to say which was the most beautiful. 



MASS. ASSOC FATIOIsr AT WASHINGTON. 141 

Constantly inisrepresontcd and often misunderstood, the language 
of King Jlenry to Cardinal Woolsey might have been appropriatel}' 
addressed to Mr. Cnshing : 

" You have many enemies, that know not 
Why they arc so, but, like to village curs, 
Bai'k vvlien their fellows do." 

But he was always understood and appreciated at Newburyport, 
where he was "the first citizen," and where the people, rising above 
party lines, always took a commendable pride in electing him to 
any position within their gift that he would accept. There, among 
the friends of his boyhood, his manhood and his old age, and solaced 
by loving relatives who souglit to promote his comfort, he received 
his death-summons like a philosopher, and his spirit took its flight. 
There, on the bank of the beautiful Merrimac, his remains will rest 
in peace, and his shining fame will be treasured as a heritage of 

glory. 

, " In vain the envious tongue upbraids. 

His name Old Newbury's heart shall keep, 
Till morning's latest sunlight fades 
On the blue tablet of the deep." 

Rkmarks of Hon. Geokge B. Loring. 

Mr. Ckairman : — In moving the adoption of the resolu- 
tions, I would remind the citizens of Massachusetts present that 
they have assembled to manifest their respect for one of the most 
distinguished of her sons on the field where his most important 
labors were performed, and to pay a tribute to his memory. 

Massachusetts has a long, useful and illustrious record of the ser- 
vice of great men, among whom the name of Caleb Cushing stands 
with the foremost. Endowed with rare powers, both of mind and 
bod}-, he commenced in his earliest youth the work of cultivation 
' which gave him a high position among the scholars, statesmen, and 
jurists of our land. So early in life did his work begin that his pub- 
lic efforts, or public observation, at least, may be said to cover near- 
ly the whole of the active, energetic and efficient operation of our 
government. Sixty years ago he had already established an inti- 
mate relation witli the l>est scholars of our countr}', and had taken 
high rank in tlieir honoral)le fraternity. At an age when most men 
are struggling on the; very tlireshold of life, he had made himself 
conspicuous as an accomplished traveller, an author, a legislator, 



142 MEMORIAL or CALEB CUSHIN^G. 

both state and national. Jlo then secured a position among the 
briiiiit and powerful intellects of the -world -which he never lost 
through a long and busy life. His mind had immense powers of 
acciuisition. Not distinguished for his creative faculty, not marked 
bv a lofty and vivid imagination, he possessed a marvelous capacity 
for actjuiring and using all knowledge which came within his reach, 
and of exploring witli great rapidity and ease all the by-i)aths 
wliich always olfer thi>ir treasures to active and capacious minds. 
And from his iunnense store of knowledge his associates in pri- 
vate and public lile were always supplied with abundant informa- 
tion. In polite conversation, in i)rof()und legal investigation, in 
diplomatic debate, at home, aln-oad, in hours of business and of 
leisure, lie was always the instructive', agreeable, and useful cora- 
[)anion and adviser. So many-sided was his mind that he had 
the largest intellectual sym[)ath}- with all classes of men ; symi)a- 
thized with Webster in his love of the land, and with Choate in his 
love of books. For more than half a century it has been said of 
him that he was indeed an encycloptHlia of profound, varied and * 
useful knowledgi'. 

But the characteristics of Mr. Gushing, not known perhaps to all 
who associated with him or to all who observed his conspicuous ca- 
reer, were as striking and interesting as these vast intellectual pow- 
ers which won the admiration of his contemporaries. From his 
ancestors in Fssex county he inherited the untiring industry and 
unwavering persistency and keen comprehension which made them 
successful business men and made him a successful scholar. He 
was identilied IVom his birth, as they were, with the best phase of 
American life, and as a niembei- of an enterprising commercial, 
manufacturing and agricultural comnmnity. Surrounded by the 
best institutions of learning, belonging to a people who sent forth 
intt) the woi'ld great lawyers and great tlu'ologians, he became nat- 
urally loyal to America and American institutions as he found 
them, lie believed in the governmental organization of his coim- 
try, and was proud of her power — not sentinientally, but with a 
strong and manly conviction of the importance of her position 
among the nations of th(> earth. 'Fhat he was ambitious was never 
denied ; but I tliink tiiat in every step he took to gratify his ambi- 
tion he was controlled by this feeling to whicii I have alluded. 
When he supported the administration of Mr. Adams he did it be- 
cause he felt that the polities of that Federal school could alone 
clothe his country with honor and prosperity. When he advocated, 



MASS. ASSOCIATION AT WASHINGTON^. 143 

with Mr. Webster, in succeeding administrations, a fiscal system 
under the control of the federal government, he did it because he 
felt that a government which he supported was entitled to the pow- 
er of regulating its own Hnancial artairs. When he defied the sen- 
timent of his own state and stood l)y Mr. Webster in supporting 
an administration which they had united to elect, he did it for the 
honor of his (-ountry, even though he closed the avenues to political 
power which had been opened before him. He took part in the 
Mexican war to protect the honor and enlarge the power of his 
country. 

When he gave his support to what he considered the constitution- 
al obligations of the people in a great political contlict, he did it be- 
cause he believed that under the constitution might be found a rem- 
edy for all existing evils. He may have been impatient, he may have 
been unreasonable with those who placed any rc^quirement or any ob- 
ligation above the constitution. He may have been fanatical even in 
his feelings against opinions which seemed to him to threaten the 
government with overthrow. But it was his loyalty, as he under- 
stood it, which roused him to the conflict, and which sent him a ne- 
gotiator of peace to South Carolina, and led him to offer his ser- 
vices to the Union army when his country was torn by civil war. 
He may have made mistakes, he may have, on account of his con- 
spicuous personality, appeared at times to shape his course by his 
political ambition. But it will be found that in doing this he often 
sacrificed his local popularity, and in securing one advantage over- 
threw another manifestly greater. And I am sure that if we will 
examine his pul)lic services at home and abroad, in peace and in 
war, whether engaged in diplomatic negotiations or in domestic 
councils, we shall find that he was controlled by a sensitive and 
almost irritable loyalty, and by a profound confidence in the capaci- 
ty of the government under which he was born. He was not an 
adroit politician, not always sagacious and wise with regard to his 
own personal interests ; but he was always useful, always generous 
in bestowing liis advice and assistance upon those who were engaged 
in raanao-ing our public affairs as a brilliant representative under 
one administration, a powerful cabinet minister under another, a 
personal adviser in the great conflict which Aveighed down another, 
and as counsel for his country in the difficult diplomatic dealings 
which grew out of the great war. He Avas not a reformer in any 
sense of the word, l)ut he always supported, like a strong pillar, the 
institutions under which he was born. Had his active life covered 



144 MEMORIAL OF CALEB GUSHING. 

our i-arly constitutional liistory, he would have ranked among the 
greatest men of that time. Had he stepjx'd Avith his youthful powers 
into the era when the purilication of the constitution commenced, he 
would have stood foremost in that great work. But, like many 
another in our land, his life covered so long and so conflicting a pe- 
riod in our history that the experience and education and associa- 
tions of the past always seemed to interfere with the duties of the 
present. But. notwithstanding all the intricacies and trials of his 
political life, he has left l)eliind a record of imblic service that can- 
not be forgotten while our government endures. 

To his friends, also, Caleb Cushing was eminent!}^ lo3'al. He 
was scrupulously true to his personal obligations. He had a strong 
and intense attachment to Jiis family ; in all liis tastes he was sim- 
l)le and unostentatious ; was especially observant of the courtesies 
of life, and peculiarly regardless of his i)ersonal aggrandizement in 
his (h'alings with his fellow-uien. His local attachments were great, 
and in all the activity and attractions of life in which he was so long 
engaged he always turned his steps towards his home in Massachu- 
setts with the sense of loyally and satisfaction cliaracteristic of one 
who knows and realizes wliat a birtli|)lace, with an inheritance of 
strong faculties, means. 



A Suggestion from Gkn. Butlkk. 

Hon. Benjamin F. Butler, who entered the hall while Dr. Loring 
was si)eaking. suggested at this i)oint that the friends of IMr. Cush- 
ing should not allow the opportunity to i)ass without arranging for 
some more public memorial. He suggested that a move be made 
ui)on the House of ReprescMitatives for a memorial service in their 
chamber. He thought some means should be taken to show the 
true loyalty with which Mr. Cushing had served his country with 
pen and sword. 



Brmarks of Hon. Henry L. Dawes. 

Mr. Oiiairjirn: — 1 have not come here with any expectation of 
si)caking to-night, but for the purpose of paying tribute, as one of 
the representatives of INIassachusetts at the Capitol, to the distin- 
guished character of the jurist, the diplomatist, the statesman, 
we are called upon to mourn. I cannot answer your call, 
therefore, in any manner becoming the occasion; I can only say 



MASS. ASSOCIATION^ AT WASHINGTON-. 145 

that Mr. Cashing has added not only largel}^ to that wealth of 
accompHshment, of learning, and of power which our Common- 
wealth cherishes with so much just pride,' but has left a national 
and world-wide fame, rare in any histor}-. These, commanding 
homage everj^vhere, to us at home are among the treasures our 
people will guard and Iveep, and not suffer to be buried with him. 

Mr. Cushing was remarkable ever3'where. There was nothing 
commonplace in whatever he did or undertook. All along the 
checkered pathway of his life and pursuits, are seen the traces of a 
master hand. His early literary efforts gave promise of a brilliant 
career in letters. So too his earlier life as a lawyer before entering 
public life made it evident that, had he not broken away from the 
exacting demands of that "jealous mistress," the law would have 
found in him a great expounder. All his life here in Washington as 
a Representative was remarkable. In all the excitement of the great 
political struggles which mai'ked that period, he was foremost in ev- 
erj' phase of the contest. Then, entering the diplomatic service for 
a brief period, it was in a new field, and with a strange and wonder- 
ful people, and his work was also wonderful. Called, after many 
years of withdrawal from active practice and the study of the law, to 
the Bench of the highest court in our state, he remained in that po- 
sition only long enough to demonstrate his judicial ability, and 
stepped from it to the Attorney-Generalship of the United States. 
In this otflce he encountered new and intricate questions growino" 
out of Spanish titles under our then recent Mexican acquisitions, 
never before discussed in the Supreme Court. The amount of learn- 
ing he there displayed was amazing. After he left that office he occu- 
pied for nearly the remainder of his Hfe, a period of twent}^ years, a 
position in respect to the administration of public affairs here in 
Washington, at once anomalous and remarkable. I know of nothing- 
like it either in our own or other governments. He was confiden- 
tial' adviser to different administrations, and in the most critical 
times through which the government was passing during that pe- 
riod his services were invaluable ; their history is yet to be writ- 
ten. Much like Baron Stockmar aiding the different Ministries of 
the young queen of Great Britian, he guided men in authority here 
through difficult crises, and out of embarassing complications with 
wonderful sivill. Thus did he illustrate every position he filled, the 
sure test of greatness. 

Mr. Cushing was the charm and delight of every social circle he 
entered. Though differing with him toto coslo in politics all my 

19 



146 MEMOIUAL OF CALEB CUSIimG. 

life 1 nevertheless Ibuml hiin over (lie most agreenblc and entertain- 
ing of eonipanions, I'lill of elieerralness, full of fact and philosophy, 
o\Trrtowino- with humor and anecdote. His intimacy with and 
knowledgt^of public men covered a longer period and a greater di- 
versity of character, intellectual and political, than any other man, 
I thiuiv. in our history. All in all. IMr. Gushing was a wonder. It 
is most fitting that Massachusetts men here to-night should pay 
tribute to such a character,— one of her sons,— however widely they 
may have tlilfered from him while living. 



Remarks of Gen. Banks. 

Hon. N. r. r»anks,iu sui)porting the resolutions, alluded to the 
fact that if this country has excelled in anything it is in the pro- 
duction of character. Of all Americans the character of no one 
will be longer remembered than that of General Gushing. A man 
can be honored by denunciation as well as by insincere adulation. 
General Gushing was no pampered son of fortune. His life was a 
hard one, and he depended for his success upon his industry. No 
public man ever exhibited such a great capacity for work. There 
was no single service the Government or an individual could ask 
that he would not perform with the utmost alacrity. The speaker 
pai<l a hightribnte to Mr. Gushing's profound scholarship. 

When called npon to decide no man decided with more prompt- 
ness than he did. It was in the last degree untrue to charge Mr. 
Gushing with wavering and with lack of determination. Speaking 
of IMr. Gushings punctuality he referred to a ball given to members 
of Gongress by citizens of the District a few years ago. The hour 
of assembling was eight o'clock. When the speaker entered the 
hall a few minutes after eight, there was a solitary figure standing 
in the centre of the hall. It was (ieueral Gushing. A few years 
later the speaker attended a public oc(>asion at the Tuillieries. The 
hour named was nine. Tiie speaker entered a few minutes later, 
and there was a solitary man in the hall. That man was Marshal 
Mac Mahou, now President of the Republic of [France. They 
were both prompt men. 

ReMAUKS of RlCIIAUl) S. SrOKFOKl) ESQ. 

Mr. Chairman: — A few words will suffice to-night, ni}' friends, to 
attest my sympathy with you, as citizens of Massachusetts, in con- 



MASS. ASSOCIATION AT WASHIIN-GTON. 147 

templatiou of the mournful event Avliich hus usseniblcd us together, 
and my sense of personal bereavement in the death of a valued 
friend. On some other occasion, when the grateful task can be ac- 
complished with more of deliberate discrimination than now, when 1, 
at any rate, shall be betterprepared to undertake it, it will be m^- du- 
tiful endeavor to connnemorate in some fitting luainier the life and 
cliaractcr of Mi-. Cushing, as Icnown 'ind appreciated by me tlirougli- 
out a period of intimate association covering not less than a quarter 
of a century. To-night, however, in the full consciousness that this 
association, with its multiplicity of cherished experiences and inci- 
dents, is for ever ended, I am conscious of that degree of embar- 
rassed feeling that will permit me to do little more than express my 
high appreciation of his character and i)ublic services, and, above 
all, m}' profound sense of those patriotic aspirations and motives 
by which he was uniformly governed. 

It has been extremely grateful to me, as a friend and fellow- 
townsman, to observe with what demonstrations of respect, both of 
an official and unoflicial character, the tidings of his decease have 
been received throughout the countr3\ Nothing in this regard, I 
am glad to say, has been lacking which could evince the lofty esti- 
mate of his public and private character, and the general recogni- 
tion of his distinguished career. In that highest of our judicial 
tribunals, the Supreme Court of the United States, the Held in by- 
gone years of so many of his forensic triumphs ; by the Executive 
branch of the government, where he has left behind hiin an endur- 
ing record in the great office of Attorney-General, and one not less 
enduring in the Department of State ; b}' the Legislature of jNIassa- 
chusetts, so many times honored b}- his presence and made illustri- 
ous by his shining efforts ; by the surviving veterans of the cam- 
paigns of Mexico, mindful of his military fame ; by the people of 
Newburyport, whose attachment to him, descending from father to 
son, through generations, no vicissitude of time or fortune could 
alienate, and which he ferventl}' reciprocated ; and now here, where 
we, his fellow-citizens of Massachusetts, sojourners at the Capitol, 
are met together in the performance of this memorial service, — all 
that the most considerate and partial feeling could prompt has been 
worthily and graciously l)estowed in ever}- form of tributary honor 
to his memory. 

Thus, it may with truth be said, that if the hour of his death is 
to be considered unfortunate for the country which still has need 
of those superb attainments and powers which made him second to 



148 MEMORIAL OP CALEB CUSIirNG. 

none among the statesmen and publieists, it has not been inoppor- 
tnne for his fame. Nor, conhl it have been permitted to him, 
through some chxirvoyanee of the mind's vision, to have foreseen 
what has oceiu'red, would lu; liave regretted, I l)eUeve, with physi- 
cal powers yielding to the a[)])roa('hes of age, the time of his de- 
parture. That so iUustrious a man should have been thus widely 
honored, is but a criterion of tlie country's gratitude for arduous 
labors in more than one consi)icu()Us sphere of public life, and for 
services not the less important tliat, in many instances, they have 
been rendered without the incitement of contemporary fame or the 
pride and prestige of official station. 

Few, indeed, have brouglit to the service of the country abilities 
so distinguislied and diversified as Mr. Cusliing, and to none can be 
ascribed a more untiring zeal or a loftier i)atriotism. So constantl}^ 
was he al)sorbed in public affairs from youth to age, so pre-occupied 
alwaj's with the toils, the studies, or the responsibilities of states- 
manship, that he has ap[)i'ared to me sometimes to be indifferent to 
— 1 should ratlier have said to be independent of — those solaces and 
charms of i)rivate life which are the customary requirement and 
support of men. Indeed, for him, childk>ss and wifeless as he was, 
the sum and ultimate of life were found in the idea and name of 
country ; so that he at least could say, with peculiar emphasis, in 
the poet's words — 

" That dear name 
Comprises home, Ivind Ivindred fostering friends, 
Pr<)t(;ctiiig laws." 

Nor was his ck'volion in tliis respect ijrompted by interested mo- 
tives or a dishonorable ambition. So far from this, it will surprise 
many to know that it is only within a brief period that he has been 
relieved from embarassment in his jjrivate affairs, and that he leaves 
behind him no largo possessions, the ordinary emolument of such 
labors as he endured. What is still more to his credit, be it said at 
this time, it concerned him littk> in what direction the winds of 
popular favor were blowing, the nionib^rs and masters of his life 
were his convictions of right and duty, under all circumstances 
whatsoever. 

Of the pul)lic men of America, living or departed, there is not 
one who. in my judgmcMit, might with greater justification than he 
have applied to himself and his public conduct through a long and 
eventful life language such as that imputed to Cicero, whom in 



MASS. ASSOCIATION AT WASHINGTOIs". 149 

man}' respects he resembled, and which a great cardinal once 
uttered in the Parliament of Paris : 

''In dlfficillimis repuqlicos teniporibm urhem nwiqitam deso- 

rui, in prosperls nihil de publico delibavi, in desperatis nihil 

timici." 

•' In the worst times of the commonwealth I have never deserted 
the State ; in its prosperity I have asked nothing for m3'self, and 
in its most adverse moments I never lost hope." 

When, in a later age, soms great orator of the Republic— the 
Pericles of its meridan splendor, or, if that be inevitable, the De- 
mosthenes of its declining period — here in tliis grandest of Capitols, 
shall revert to our times and recount their history, few names upon 
the roll of our civic fame will seem more illustrious than his in honor 
of whom we are now assembled. The attritions of prejudice or 
passion, the misconceptions of ignorance, the blindness of jealousy 
or envy, for the time.being, when political passions are dominant, the 
rancor of faction maligant as now, may, in some quarters, obscure 
the fame of one who was ever too thoughtless of its vindication ; 
may serve even to detract from his personal merits and the value 
of his public labors. But in the future, these, the mere fleeting 
shadows of the moment, will be swept away, and, gathering a 
steadfast brilliancy with advancing years, the fame of Caleb Cush- 
ing will have a secure place and be proudly cherished in the hearts 
of his countrymen. Thus will our departed friend and fellow-citi- 
zen have achieved all that in human life is most honorable to men, 
the fitting reward of those unselfish toils which in the high walks of 
public duty still make ambition virtue, — ambition which was for 
him, and will be for the great in every age, 

"The spur that the clear spirit cloth raise 

****** 

To scorn delights and live laborious days." 

By all it will then be clearly recognized that the true rank to be as- 
signed to him is that of one among the greatest of statesman, the 
most learned of lawyers, the most patriotic of citizens, the most 
accomphshed of men ; and that, occupying this pre-eminent posi- 
tion, so great and valuable were his public services, it may truth- 
fully be said that in his day and generation he was one of the pil- 
ars of the Republic. 

A vote was then taken on the preamble and resolutions, which 
were unanimously adopted, the audience rising. 



150 MEMORIAL OF CALEB GUSHING. 

Dr. Loring moved that a committee of three be appointed to 
consider the siio-gestion made by General Butler in reference to 
public memorial exercises, and take action, if found desirable. 

The motion was carried, nnd General Butler, General Banks, and 
Hon. (ioorge 1). Robinson were appointed as the committee.* 

The meeting was then ajourned, sine die. 



*Tlie House having previously passed a resolution forbidding the use of 
its Hall for non-legislative purposes, the committee abandoned the propo- 
sition of Gen. Butler that Memorial Exercises be held there. 



PKOCEEDINGS OF THE MASS. SUPREME COURT. 



At a special meeting of the Essex Bar Association, held Januar}' 
7, 1879, Hon. Nathan W. Hazen of Andover, Hon. Eben F. Stone 
of Newburyport, Hon. Thomas B. Newhall of Lynn, Hon. William 
D. Northend of Salem, Hon. Charles P. Thompson of Gloucester, 
and Stephen B. Ives, jr., esq., of Salem, were appointed a com- 
mittee to prepare and report to the Association, at an adjourned 
meetino' to be held at Salem Court House on the first day of the 
April term of the Supreme Judicial Court, a suitable memorial or 
resolutions on the death of the late Hon. Caleb Cushing, for pre- 
sentation to the Court at that time. 

At the adjourned meeting of the Association the committee re- 
ported the memorial, which was unanimously adopted ; and Steph- 
en B. Ives, jr., esq., president of the Association, presented the 
same to the Court, Mr. Justice Morton presiding. 

Judge Morton directed the memorial to be read, and the Hon. 
Nathan W. Hazen, chairman of the committee, read the following 

MEMORIAL 

To the many eminent names before borne on the roll of deceased 
members of the Bar of Essex County the name of Caleb Cushing 
has now been added. 

It belongs to us in commemorating him to trace his career, and 
to depict his character, as a lawyer, to such an extent as a brevity 
proper to the occasion will permit. 

He was a descendant in the seventh generation from Matthew 
Cushing, who emigrated to this country in 1635, from Hingham, in 
the county of Norfolk, England : and in the fifth from Eev. Caleb 
Cushing of SaUsbury, who gave proof of his truly Christian char- 



If)!^ MEMOJilAL OF CALEB GUSHING. 

acU'i' li\ iH'iiiii- one of Ihirl y-iiiiu' iniiiislci's wlio signed a letter to 
(loveiiior Dmllrv in 1707, npnrovinii; the election of Leverett, a 
layman, (o lie president of Harvard College. 

'ri\e snl>Jeet of this memorial Avas born at Salisltnry, in this eoun- 
tv. .lanuarv 17. ISOd. IK' was edncated for eoUege at Newbuvy- 
m)|.(, — 1() whieh place iiis father had removed, — niaiidy, it is said at 
tile private school of JMichael Walsh, .anthor of a once famous 
aritiimetic. Entering college with an imperfect [)roparation, he 
made snch progivss in his studies that he was awarded the saluta- 
tory oration, and graduated before ho was seventeen years old. It 
is renuMubered of him. that in college he was reserved in his inter- 
course ; that lu' sought no aid from others, and nothing was known 
of thorouglnu'ss of his studies until its fruit Avas develo[)ed. After 
being tutor in the college one year, he studied law in the olllce of 
Kbeuezer IMoseley at Newburyport, and was admitted to the Com- 
mon Pleas Uar Di'cembi'r 7, IS:.*!, and afterwards at Suflblk to 
l)raetice at tiiis bar. 

!lis studii's at this time wert< various, and he accpiired a wide 
fame foi' general knowleilge. In liis profession he seems to have 
been content to in)ld an eipial rank with the very res|)ectal)le gentle- 
men who tiien comi)osed the bar of Newburvi)ort. Ills lirst re- 
port ihI ease is November 7, 1S2G. Rufns Clu)ate was admitted 
Seittember 7, l.s-i.'). It might be ex[)ected that contemporary, so 
long as they were in the same county, they would often be retained 
as opposing counsel in the same suit. Tiiere is a single case re- 
ported in which this oc-curred. No doubt there wiu'e other encoun- 
ters between them. In 1S;52 there Avas tiled a bill in eiputy praying 
for an injuni'tion ; Choate for plaintills, Cushing for defendants. 
On the hearing before C'hief-.Instice Shaw, he remarked, in granting 
the prayer of the bill, that, so far as he knew, it was the first 
iujuuction issued in the couunouwealth. 

In an indictment against the proprietors of Newburyport bridge, 
on the trial before a jury, Mr. Cushing in the defence, the common- 
wealth had the verdict. INIr. Choate was then retained, and it was 
discovered that the indictment did not expressly allege that a bridge 
had ever l>een built. The [iroceedings were thereupon quashed. 

In 1S27 Mr. Cushing met .Mr. Webster, then in the maturity of 
his fame and power. The arguments are reported at unusual 
length. As reported, they do not seem to have aided the court, 
whose decision is put on ground not assumed by either of the 
counsel. 



SUPKBME JUDICIAL OOUJir OF MASS. 153 

iVIr. (,'iisliinji' was elected U) Congre.s.s in 188;>. He soon l>ecuiue 
:i (listinjiiiished meinljei' of the House of Representatives, and was 
placed iij^on tLi(! eouiniittee on Foreign Relations. In this capacity 
he made some highly valuable reports, even then developing unset- 
ilc'i questions between this country and Great Britian, During his 
servi<'e in ('ong)'ess he seems nearly to have ceased his practice at 
the bar. 

In \H4'.') he ai"ce|jfed the ntission to China. His instructions were 
prepared Ity Mr. -Webster, whose son accompanied him as Secretar}' 
1)1" Legation. lb; was (;minently successful in negotiating a treaty, 
wliicli wliiie it remained tlie rule lietween the nations served every 
pui'posc; of jjeace and connnerce. 

To this suc(!eeded iiis military scnvice in Mexico, which closed 
ill ]K,\s. 

lie then o)*ened an oflice in Hoslon, and I'esided at Newburyport. 
l"or tile succeeding years there is no marked trace of him in his 
profession. Vnnn what lias since appeared, these years wei'e prob- 
ably spent Ity him in the study of the law I>y the same haliits -which 
he had observed wIkmi in college. 

A statute was |>assed April 20, 1)S52, giving an additional judge 
to the SupreiiK! Judicial Court of Massachusetts. Mr. Cushing re- 
ceived the appointment, aiul took his seat on the bench at Suffolk 
in July following. 

A nisi prlus term ol' this coLirt was then by law held on the sec- 
ond Tuesday of September in Berkshire, one week before the law 
teim in the same (toiinty. This was the first term held tor jury tri- 
als iifter his ai)pointineut ; it was assigned to him. 

Whih- his reputation for general ability was famiUai- to them, yet 
the long period which had intervened since the limited practice of 
the; law. which he ever attained, had wholly ceased, without notice 
of any later study, or of even an apjx^arance in the prof(;ssion 
known to them, made his advent into tlu^ii- county to preside at 
tiKiir term of its highest court, looked to with an uncommon inter- 
est liy tile learned bai' of Bei'kshire. 

There was :i single jury t.iial : it was in a real action, and in- 
v<^lved some (fuestions upon subjects not of frequent occurrence. 
Judge (,'ushing reported the (;asc. Abandoning the usual imper- 
sonality, he re|)orts. '■ I was of opinion : " -'I admitted the e\a- 
deiiee ; " *" 1 instiu(;ted the jury." Tlie rulings and instructions 
were embraced in five points to which exceptions were taken. Mr. 
Justice Dewev, <'ivin;'' the opinion in the case, closed it with these 

20 



154 MEMORIAL OF CALEB GUSHING. 

words: "Tlu' result is :ill tlic cxciiptious overruled." Upou the 
trial of the cause ht'fore the Jury, he seized at once the point raised. 
and was clear antl prompt in his ruliu,<>s. Through the term he was 
patient and courteous, and exceedingly gracious to the counsel. 
During the weeic lu' found leisure to be present at a trial l)efore a 
justice of the peace. After it was concluded he gave the magis- 
trate advice as to some points of j)olicy to be observed, and of 
the duties of his otlice generally, wliich was much valued l»y the 
recipient. 

While till' o])inions of the court Jiave an eipial value, each par- 
takes the idiosyncrasies ol' its aiithoi'. 'I'hose of dudge C'ushing 
exiiibit the great extent ol" his reading, the thoroughness of his 
studies, and the la'cnness and vigor of his intellect. His criticisms 
of reported cases are often highly instructive. 

In the second case whosi> ()i)inion was given by him. he corrt'cts 
misconception of the law in reference to trustees sununoned. which, 
from till' cases cited, seems to have liecome general. In the same 
term, he criticises an Knglish c;ise. which he calls the anomalous 
case of Austin V. Drew, and couuuents upon it as given bv four 
ditferent reporters, each report ditfering from all the others. His 
opinion in the case is remarkable for the mastery which he exhibits 
over this whole series of reports, and for the clear nde of law which 
his ratiocination deduces from the whole. His opinion in the aflirm- 
ative. that larceny nuiy be connnitted of |)roperty of one who has 
unlawfully ac([uired it. is so drawn as to I'ecoucile in the case law, 
morals and public policy. It would not be sale to assert, that all 
his opinions may l)e held uj) as models, it may however be sugges- 
ted that each will tend to persuade the reader of its Just right to 
authority. 

.\t college and in early life the elocution of iMr. Cushing was de- 
fective. The more rapid rise of Mr. ( hoate is nnich to be attrib- 
uted to his more ready and impassioned oratory. Whatever were 
the natural defects of JMr. Cushing in tliis respect, he subdued and 
corrected them until he became one of tlie most etiicient speakers of 
his time. He presided at the National convention held at Charles- 
ton. South Carolina in l.SGO. and began his services on this occa- 
sion by an address to an audience of three thousand pei'sons, when 
every syllable of his speech reached every one in the vast hall capa- 
ble of containing such numbers. For ten consecutive days, the 
Sabbath only intervening, he presided over a meeting of more than 
two hundred and (ifty members, holding for the most part two daily 



SUPREME JUDICIAL COURT OF MASS. 155 

sessions ; the jisseuiljly nil the time engaged in excited debates, and 
in the end unable to come to any agreement. The capacity for la- 
}>or and of endurance shown by him on this occasion display the re- 
sources, mental and physical, which sustained him in tiie intense 
and protracted efforts to wliich he was subjected in the course of l)is 
later professional life. 

He was i)erfectly formed and of medium size ; liis features regu- 
lar and handsome ; liis face Avas highly expressive ; in early youth 
it betrayed all his emotions. On one of his first entrances into the 
court h(Kise at Salem, he attracted the attention of Mr. OUver, the 
learned author of Forms and Declarations, and of the Conveyancer, 
who inquired with much earnestness who he was : "For," said he, 
"he is the most ambitious person I ever saw ; since he has sat there 
his face has Hushed and paled half a dozen times." The life of the 
subject of tlie augury has verified its truth. 

In iNIarch, 1853, Mr. Cushing accepted the office of Attorney 
General in the administration of President Pierce. The printed 
opinions of those officers, to the present time, fill thirteen volumes, 
of which those of Mr. Gushing are comprised in three volumes. 
These give vivid and clear views of American liberty and modes of 
goA-ernment ; they show how smoothly and how safely to the citizen 
they operate when guided by the law and controlled by the consti- 
tution. Nowhere better than here can the citizen reillumine the light 
and heat of patriotism, or the student better learn to appreciate the 
value of the political institutions which protect him, and which he 
in return is liound to supp(n-t and cherish. They measure, too, the 
crime of whomsoever should substitute for them violence and arms, 
or persist in conduct caUnilnted to stimulate others to such re- 
sorts. 

Nobly, on several occasions, did the attorney-general defend and 
vindicate the honor and interests of his country. The necessities 
of Great Britain foi- the supply of soldiers to its armies in the war 
then pending with Russia led to attempts to enlist men in this coun- 
try. The British ambassador then here, and some of the consuls 
of that nation, shared in these attempts. These violations of the 
most sacred rights of a nation were reproved by Mr. Cushing in a 
manner likely to prevent their repetition in all future time. 

Application was made to the government for an indemnity' for the 
alleged use of .lackson & Morton's patent for ana^sthesia in surgi- 
cal operations, which was referred to the attorne3--general. After a 
full hearing he decided against the claim, on the ground of the in- 



15f) MTIMORIAL OF CALEB GUSHING. 

validity of tiie pntonl. Artcr discussing- vai-ions i)oints of l:iw, lie 
doses Ins o])inion in this scienlKic manner: 

'' 1 tliiiik that in tiic nuitter out of wliicli cjiuk; tliis patent, a sig- 
nal service was perfoi-nied, lionoralile to the parties and to theii- 
country. It was not tlie iliHiuxuinj of the anodyne elfect of tlie in- 
halation of ether or other auiestlietic agents : it was not the inven- 
tion of tlio performance of surgical operations on tlie luuiian body 
which reduced to temporary insensilMlity l»y ana'stliesia. Tliese 
were ideas familiar for ag(>s to men of science, and tlu' discovery 
of avhich no more belongs to any individual, as pro})erty, tlmn elec- 
tricity, the fusil)ility of metals, llie sp(!cilic etfects of opium, cin- 
chona, mercury, tlie capacity of sleep, which ("ervantes speaks of 
as a vahialile invention, oi- any other of the ascertained qualities of 
matter, functions of animal life, or laws of inanimate matter. 
Neither of these tilings constitutes that honorable service performed 
in the [iresent instance. That servici' consisted in the suggestion 
and execution of a series ol" experhnents. which resulted in demon- 
strating the safety and utility of emi)loying moi'c frequently than 
had lieen done heretofore the known agents of ansesthesia. l)v known 
methods, in order to the known end of facilitating surgical opera- 
tions. That was a great good, and worthy {\\w honor." 

''There* could lie no (piestion of patent in the successixe steps of 
discovery and demonstration, which, beginning with Coiiernicus. 
continued liy Kepler and (bilileo and consummated by Newton, un- 
folded the mysteries of the law of gravitation, and the composition 
ot the solar and planetary systems of the universe." 

'• So there can be no patent for the expansibility of heated 
acqneous vapior, nor for its apjilication to use, as a mechanical force : 
but there may b(> for specilic instruments or methods of such 'a\)\A\- 
cation." 

" In like niauner. electro-magnetism i^annot l>e patented, nor 
even its use as a, means of communication, but particular means of 
its employment may he patented." 

Since this opinion w^as given, the public has not heard of claims 
made under this patent. 

Mr. Choate w.-is retained and went oiuh', at least, to Washington 
in reference to it. If it was formerly the part of Mr. C;hoate to in- 
form M\\ Cushing that, so far as the indictment went on which his 
clients had been found guilty in liuilding a bridge, tlie bridge itself 
might l)e a myth, it was now the part of Mr. Cushing to apprise 
Mr. Choate that the letters patent of his clients were a Hgment. 



SUPREME JUDICIAI. COURT OE MASS. 157 

These distinguished brethren held each other iu high esteem. 
The}' became, with Robert Rantoul. jr., joint purchasers of a large 
tract of Western lands : the whole speculation w^as finally assumed 
by Mr. Gushing. It subjected him to the vicissitudes of frontiei- 
litigation with an antagonist who proved to have equal determina- 
tion. A long and undecided contest l»etw(H^n them was closed ])y 
a N'oluntary partition of the estate. 

The steadiness and intelligence with which the attorney-general 
held to the rule of law, his love and reverence for the constitution, 
his complete knowledge of the history of his country, must have 
been highlv promotive of the success of any administration. That 
of President Pierce has accordingly been said to have been one of 
the most successful. Perhaps the affluence of learning, the skill of 
interpretation, and the power of analysis displayed in the three vol- 
umes of opinions by Mr. Gushing are not excelled in these charac- 
teristics by the work of any lawyer in the English language. 

The reader of these opinions will observe and admire with what 
care their author has derived our political institutions, liberty and 
rules of judicial decision from the common law, and has drawn 
their origin from its fcjuntains, from the Year Books, from Coke, 
Plowden, Viner, and all the ancient sages of our jurisprudence, and 
has traced the recognition of its precepts and principles through the 
whole series of modern reports, and even in the latest text writers. 
These researches were his owai work, seldom aided )\v counsel on 
either side of the question presented. 

In this office, as Avell as in Congress, the grounds of controversy 
existing Ijetween this country and CJi'(>at Britain excited his atten- 
tion, and he considered them as they occurred to him. 

After his retirement from office he was i-efained in many highly 
important suits. One of the most remarkal)le was that of the 
Gaines claim to land in the city of New Orleans. The case in 
which he w-as engaged for the plaintiff and claimant, was the sixth 
suit in the Supreme Court of the United States for the same prop- 
erty. Each of the five former actions had been decided in favor of 
the defendant, who, however, was not the same person in all the 
suits. The record of the case in question consisted of one thousand 
printed pages. Among the sul)jects of investigations, one was into 
the criminal jurisdiction of the Spanish Inciuisition. Judge Wayne 
in closing his opinion for the claimant said : '' When hereafter some 
distinguished American lawyer shall retire from practice to write 
the history of his c-ountry's jurisprudence, this case will be regis- 



158 MF.MOIMAI. OF CALEB CTTSHTT^C. 

t;M'iMl !)v liini :is 111" most, i-ciiKirknUlo in tlu' ;uiii:ils of \\h courts. " 

Tlu'TrcMit Mllair \v;is ;iii c.Mrly incidiMit of the late civil war. The 
captnro of the Confederate citizens was the subject of oeneral grat- 
ulation. ^Fr. Cusliinp,- decided at once that they could not be held, 
but nuist be surrendered upon the Hi'itisli demand. His judgment 
prevailed, and was carrie(l into etl'ect l)y a dis|)a,tc[i, to the writing 
of which he contributed, but its entire authorship is not to lie as- 
cribed to him. He saw in this event a sullicient cause for waking 
into life all the elements of discord subsisting between the two na- 
tions and our entran<-e into war with the wrong on our side.* 
Through the civil war Mr. (•ushing was constantly consulted by 
j^Ir. Seward. So frequently wer<' tiie calls for this iMupose. that 
Mr. Cushing was inchiced to remove to Washington. 

Aliout this {)eriod he was on a learned commission to revise the 
Acts of Congress. Those who have had occasion to explore the 
vast and intricate mazes of the United States Statutes at large, 
will best comprehend tlie labor and care necessary to the ])erform- 
ance of this duty, as it would be pei'formed by him. 

"When the war had ceased llu" American government claimed from 
that of (ireat liritain reparation for damages inllict<'d by it u})on this 
country during the contlict, and by reason of its existence. Mr. 
Cushing has stated more Ibrcibly. than has been done by any other 
person, the charges tf) which the iiritish government had thus sub- 
jected itself. The negotiation of the Clarendon Johnson Treaty 
followed, which was I'ejected by the Senate. The alti'rnatives were 
war or fresh negotiation. The studies of Mr. Cushing had quali- 
tied him for an activ(> agency at this crisis. lie had an enumeration 
of the atfairsand interests unsettled between the go\'ernments. He 
found there were five ditierent sul)jects. involving forty-three arti- 
cles to be provided for in any Treaty which should be a perfect set- 
tlement lietween them. 

'IV) negotiate such a treaty successfully must be the work of great 
knowledge and sagacity, of vast labor, and of nnich delicacy. 
\\ hen it had been agi'ced to negotiate, live connnissioners wi're ap- 
pointed on the part of the United States, three of whom spoke only 
when otllcially called upon, leaving tlie negoliation where it l»e- 
longed, in the hamU of the government, which for this puri)ose con- 
sisted of ^\v. Fish here, and Mr. Sclienck in Loudon. It is not 
pretended th:it the Seeretarv or the Ambassador had more than a 



*See note at the end of this ISreinoriai. 



SUPREME JUDICIAL COURT OF MASS. 159 

general knowledge of the snbjeets of negotiation. Mr. C'ushing liad 
analyzed and classified them. They were fully in his mind, and 
could be dealt with by the ability he was so well known to possess. 
This state of knowledge upon the subject made it inevitable that 
the conduct of the negotiation should receive its first impulse from 
Mr. Gushing, while the ultimate decision and responsibility rested 
elsewhere. 

The result of the negotiation was the treaty of Washington, 
which does provide for a perfect settlement between the two na- 
tions, embracing specifically the five sul)jects and forty-three arti- 
cles enumerated b}- Mr. Gushing. 

It referred the Alabama claims to an arbitration before which the 
United States and (Jreat Britain were to appear, as parties to a suit 
at law. Mr. Cushing was counsel and agent for the United States. 
The American case, as filed with the arbitrators, consists of eight 
octavo volumes, comprising 5244 page's. Tlie British case is con- 
tained in three volumes, and covers 2'S23 pages. The British 
. coiniter case is in four volumes folio ; this is equivalent to the plea 
and answer ; the American is in three volumes folio. 

The United States claimed for consequential damages : for dam- 
ages to the nation in its sovereign capacity, as well as for damages 
to the individual citizen. ^luch heated discussion through the 
pi*ess followed up(^n the disclosure of the American case stating 
this claim. While the discussion went on, Mr. Gushing made his 
headquarters at Paris, as the great centre of international commun- 
ication, and was busily engaged in preparing the American counter 
case, and in watching the current of discussion, and the state of 
opinion. When, therefore, the arbitration assembled at GencA'a, he 
was well informed of all the influences to which an}' had been suli- 
jected who were concerned in it. 

The arbitrators took cognizance of the claim for consequential 
damages, the injiuy dcjne to the sovereignty of the nation. It was 
hence that the sum awarded, so nuich more than covered the claims 
for in(livi(bial losses. The result was a triumph for our country. 
The honor of its achievement belongs to 3[r. Gushing. To him 
also belongs the higher glory of being author of the Treaty' of 
Washington. 

Thus at Geneva, on the same plains of Europe where Waterloo 
and so many other bloody Ijattles have been fought in every age in 
the settlement of national quarrels, our country-, without shedding 
one drop of l)lood or adding one pang to the sum of human misery, 



IGO MEMOKIAL OF CALEB GUSHING. 

vindicated luTscif gained Ju.slice. and a victorv lull ol" liloiy, over 
the most powerful oC nations. 

In all this Mr. ('ushing was as much the leader, as he would have 
been, if the commander of a conciuei-iuii- army. Equal honor at 
least is due to his mi-mory. as if he had won the triumph by force 
of arms. 

These services wei'e I'cndeivd by iiim bj his country, as a lawyer. 
It was his learuiiiii and sl<ill. as a lawyer, which enabled him to 
render them. 

After reiidei'iug these benefits to the nation, he was nominated to 
lie Chief Justice of the Lbiited States. 'J'he nomination was with- 
tlrawn. Enquiry into even the alleged causes and [)retexts will not 
change the obvious charactei' of the transaction. 

Through life Mr. Cushing was self reliant. He had the industry 
of Cicero, but he had no Atticus. Like Cicero, he was never a 
thorough [^artisan. He declared his purpose to maintain his indi- 
viduality, lie would never suffer himself to be absorbed in party, 
llenct' he never secured to himself perfect [)olitical allegiance. The 
ollices he held were given in his merits, and for the sake of his ser- 
vice in them. It hapiumed b) him. as we have seen in this brief re- 
cital, to enter ollice under circumstances calculated to provoke criti- 
cism on any failure or deficiency on his part. When he laid down 
ollice. his discharge of duty in it had bt-en such, as to leave room 
only for praise and admiration. 

His attainments in learning were such, as a thirst for knowledge, 
a love of labor, an uni'ivalled facility <^f acquisition, aiul a most re- 
tentive memory, supplied. His use of them was regulated by a se- 
vere and well disciplined taste, by hal)its of ordi-r and method, by 
a perfect control ovei- his attention, by a keen percei)tion, by extra- 
oi-dinary powers of analysis, and of concentration, and by a high 
respect for truth. He feared no task : he shrank from no b)il ; no 
undertaking, within the compass of human labor was too vast or 
too tedious for the encoin)ter of his courage. Hie work he per- 
formed has not yet been measured : nmch of it is yet locked in the 
archives of state, or lost for tlu' time in the i-egion of documents. 
His name and memory, though for very diti'erent reasons, like those 
of the great English L-wyer, nmst be •• becpieathed to his country- 
men after some time Iw passed o\er." 

When i)osterity ivckons the names of llie heroes whose deeds and 
lives have honored and adorned humanity, it will count among them 
the name of Caleb Cusliiug. W^' seek to perform what belongs to 



SUPKBME JUDJCIAL COUKT OP MASS. 161 

us to do : to claim for our profession the honor his name confers 
upon it ; to ilhistrate his example, and to bear our testimon}' as 
witnesses, to his chai-acter and career. 



XuTK. This; brief relation presents an incident in the Hfe of Mr.Cush- 
ing which deserves raoie notice than it has received. In a crisis of his coun- 
try's fate, his vast and ready stores of learning were brought to its rescue.' His 
voice from the first, and when it was nearly alone on his side, was raised in 
reprobation of the act of Capt. Wilkes. Well known persons remember that 
lie spoke as related in the text: ''It was," he said, " a violation of neutral- 
ity on our part." 

The skill and ability willi which the novel questions raised by the case were 
treated in the despatch, and its conclusion to restore the captives, saved this 
country from a war with (ireat Britian. Its people never respected our form 
of government, and when it seemed no longer capable of maintaining itself, it 
appeared to them, like the bundle of sticks in the legend, the dissolution of 
whose ties of nnion had rendered its jmrts contemptible. They were highly 
indignant that a vessel in their view nearly without a nation, should assault 
and board one of theirs, seize and carry away from it by violence persons under 
the protection of its dag on the high seas. The government responded to the 
popular feeling and, before a word had been heard upon the subject from 
that of the United States, besides other warlike nieasnres, ordered its navy for 
this cause to prepare for immediate service. 

The brief extracts which follow will show how the relations between the 
counti'ies we-e affected, and what was the peril of the Union. 

Mr. Adams, the Minister from the United States, in an ofEcial letter from 
London dated Nov. 29th, 1861, wrote, "There is little room to doubt that the 
same steamer which bears this will carry out a demand for an apology, and the 
restoration of the men. I confess that the turn things have taken gives me 
great anxiety for the fate of my unhappy country." 

On Jan. 17th, 1862, he writes,"! have now received copies of all the papers 
connected with the affair of the Trent. The result is in the highest degree 
satisfactory." 

"I need not add my testimony to the general tribute of admiration of the 
skilful manner in which the various difhculties and complications attending 
this nnfortuuate business has been met or avoided." 

Mr. Adams, in his eulogy upon Mr. Seward, referring to his failure to re- 
ceive support from the whole Cabinet in this measure, says of the whole nego- 
tiation," It was the act of Mr. Seward, and his name was to be associated with 
it whether for good or for evil." The eulogist adds with a just significance, 
"That name will ever stand at the foot of the despatch. In my belief that 
act saved the unity of the nation." 

To this act Mr. Gushing was a party. The historian, competently ac- 
(luainted with the lives and qualifications of hotli, and with the state imper 
before, him, will give to each his due share of the high praise and ennobling 
honor whicli bhould follow a service so patriotic and so important. 



21 



162 MEMORIAL OF CALEB GUSHING. 

Col. Ebeu F. Stone oC NcwhuryiJort, in seconding the motion tliat 
the memorial be entered npon the files of the eonrt. said : — 

May it please j/ouy Honor : — I am not piepared to make any 
foiinal address, or to do jnstice to my own feelings, as I did not snp- 
])ose the snbject would hv. introduced at this time. I will, however, 
attempt to say a lew words, which. perhai)s, will assist the younger 
members of the Bar, — who never knew i\Ii'. Gushing, — in form- 
ing a conception of tlie man. as distinct from his work. The 
memorial just read is an admiral )le sketch of Mr. Cushing's 
career as a lawyer and a pubUc man; Init thei'c is a natural 
curiosity to know something about the man himself, — his organ- 
ization and charactei'. I knew him well, and enjoyed, for many 
vears. the privilege ol' his society and friendship. It always 
seemed to mi' that ATr. Cushing's distinctive qualities were his 
strong jthysical constitution, his untiring industry, his remarka- 
l)ly capacious and retenti\«' memory, his wonderful attainments, 
and his extraordinary force and vigor of mind. He was not a man 
of imagination, not a man of gX'nius : so oi-ganized as to have little 
or no sympathy with men of genius, — l)ut he was eminently a man 
of talents. His mind moved under the im))ulse of his will : and as 
a man of talents he was most extraordinary, dealing with the most 
ditticult [)roblems of law and government with the utmost ease and 
facility. He left the practice of law, early in life, foi' politics, Init 
he had the qualities wliich would easily have made him in'omiuent 
in our profession. Not that he had all the (jualities of a great law- 
yer, using this term in its highest sense, which should include the 
jurist and something more, but he w-as es[)ecially qualified liy nature 
and education to tlo. successfully, the work which appro^jriateh' lie- 
longs to the foremost men of our profession. When his active po- 
litical career was substantially ended, he ga^•e his time to the study 
and exposition of federal and international law, and soon mastered 
their rules and principles. IK' never gave much attention to the 
common law. It was not congenial to his taste. The first article 
of any pretension he e\ er wrote, was on the civil law, and it was pub- 
lished in the North American wlu'u he was only twenty-one years 
of age. The last literary production of his was an address on the 
civil law. delivered to the law school at Washington. 

It is remarkable that this liar should have produced three such 
fxti-aordinary men. who were contemporaries, as Choate, Gushing, 
and Kantoul. all three of whom were not only distino-uished at the 



SUPREME JUDIOICL COURT OF MASS.* 163 

Bar, but also in the councils of the state and nation. It would be 
interesting to compare the three, but this is not the time nor the 
place to attempt it. I will simph' say. that as Essex men, and as 
members of the Essex Bar, we shall always feel as if, in an especial 
sense, they were our property, and our production. It is for us to 
1»ear ourselves as worthy of such associates. 

Hon. William D. Nortliend of Salem, said : 

May it please your Honor: — A great man, a great jurist, a 
great statesman, has passed away. The man who for so long a pe- 
riod has been regarded with just pride liy his felloAv-citizens of this 
county, in the fullness of time, and crowned with honors such as 
few men have ever enjoyed, has closed his mortal career. Caleb 
Gushing possessed, in a remarkable degree, all the qualities and 
attril)utes which are essential for the accomplishment of the largest 
intellectual results. He had a robust constitution and great natural 
abilities, and. with these endowments, extraordinary perseverance 
. and industry. Tlie amount of labor he performed was almost in- 
credible. I remember well of Mr. Choate speaking of his industry 
as beyond that of any man he had ever known. This was on his 
return from Washington, where he had been engaged for some days 
in consultation with Mr. Cushing, who was then attornej'-general of 
the United States. Those who rememljer Mr. Choate's untiring in- 
dustry will appreciate the force of this high compliment to his dis- 
tinguished friend. There was no subject upon which Mr. Cushing 
had not made himself proficient, and the wealth of learning he 
always showed, not only in his studied efforts, but in his conversa- 
tion with his frieiids, was truly wonderful. As an example to 
young men who aspire to high intellectual attainments, the life of 
Mr. Cushing may be studied with the greatest profit. 

But 1 would not forget to speak of the social qualities of this 
great man. Those who enjoyed the privilege of an intimate per- 
sonal acquaintance with him will ever remember his uniform kind- 
ness. He never seemed to be in the least affected by pride of posi- 
tion oi- station. For liis friends he had at all times a hearty wel- 
(•(Mne, without affectation or reserve. He always took a great inter- 
est in the affairs of the community in wliich he li^-ed. and no one of 
his neighbors, however humble, ever sought his advice but it was 
freely and cordially given. His neigliliors always felt that in Mr. 
Cushing they had a valuable friend. 

It is peculiarly fitting that the Bar of Essex county should com- 
memorate the eminent qualities and services of their deceased asso- 



164 MEMORIAL OF CALEB OUSHIN-G. 

ciate. and that the udmiraljle jneinorial prepai'ed by Mr. Hazeu 
should be placed upon the records of this court. 

Rkmarks of Judge Mokton. 

This is not the place nor the occasion to attempt to delineate the 
intellectual and personal character of a citizen who has filled so 
large a place in the public eye as tlie late Caleb Ciishing. 

But we may briefly allude to the (pialities which were the founda- 
tion of his fame, and in which he is most wortliy of i-emembrance 
and emulation. 

For sixty years of a most active life lie maintained the high repu- 
tation with which he left college. In talents, versatile ; in reading, 
omniverous ; in study and nientnl labor, indefotigablc ; of him it 
could be said, with more truth than of almost any man of his time, 
labor ipse voluptas. 

No stage of his long and vnried career atfords a better or more 
characteristic portrait of him than his brief term of service u])on 
this bench. 

For some years previously he had been so engrossed in other 
fields of labor that some entertained doubts of the fitness of the 
appointment. But those who doubted did not know the man. 

He immediately concentrated liis I'cmarkable faculties upon his 
new duties, and was said in the space of six weeks to have read 
through the entire series of the Massachusetts Reports : he sur})rised 
the whole bar by the ease and alulity with which he presided at nifii 
priits ; and T have l)een told by his colleagues, not one of whom 
survives, that he took a leading part in the consultations of the full 
court, espeeially upon questions of constitutional and public law. 

After a service of but ten months he resigned, to accept the office 
of attorney-general of the United States. Since that time his valu- 
aljle public services are tamiliar to all and have been fittingly re- 
ferred to in the memorial of the Bar: iiis learning and his counsel 
have been a sui)port to successive administrations of the national 
governments : and his studies in Jurisprudence, poHtics. history 
and literature Avere continued without interruption to the end of his 
long life. In his studiis lahorlbusque viventi, von intelligitur 
'[uando obrepat senectvs. Ita sensim sine sens.u aetas senescit: 
iiec stibito frangifMv; sed diuturnitate extinguitur. 

Concurring in the sentiments of the memorial presented by the 
Bar, I shall order that, out of respect to the memory of :\rr. Cush- 
ing, the memorial be recorded and the edurt be now adjourned. 



PROCEEDINGS IN THE U. S. CIRCUIT COURT, 

DISTRICT OF MASSACHUSETTS. 



At a meeting of the members of the Bar of the Circuit Court of 
the United States, held January' 22, 1879, on motion of Hon. 
Charles Levi Woodbury, a committee of three was appointed to 
draw up an expression of their appreciation of the character and 
services of the late lion. Caleb Cushing. The following gentlemen 
were appointed a committee : Hon. Charles Levi Woodbury, Hon. 
Henr}' W. Paine and Hon. Charles Theodore Russell. 

At an adjourned meeting held May 22. the committee made the 
following 

REPORT. 

This Bar, in common with the citizens of Massachusetts, in the 
death of General Cushing, mourns tlie loss of one of its oldest and 
most distinguished members. During the tiftv-five years since he 
first became a practising lawyer, the circle of his fame has been 
constantl}' enlarging. Thrice he had represented his fellow-citizens 
in Congress, when he was appointed minister plenipotentiary to 
open diplomatic intercourse with the Chinese government. To his 
voluntary offer of his sword as the colonel of the Massachusetts 
regiment of volunteers in the Mexican war, the President and Sen- 
ate added before its close the distinction of a commission as briga- 
dier-general. 

After peace with Mexico he returned to private life and soon ac- 
cepted the position of justice of the Supreme Judicial Court of Mas- 
sachusetts, where his characteristic industry quickh- supplied the 
deficiencies which these divergencies into political, militar}- and 
diplomatic pursuits had tended to produce, and placed him on a 
level with his associates in even the technical and routine acciuisi- 



16() MEMOKIAL OF CALEB CUSHLNTG. 

tious iKH'dcd to expound in full the Judi(;ial system of this coinniou- 
wealth. 

On the accession of General Pierce to the presidency he was 
called to the hiah of lice of attoi-ney-general of the United States, 
where his vast and varied legal acquirements became more conspic- 
uous. There was no branch of public law in w^hich he failed to dis- 
tiniiuish himseli'. The law of nations, the complex system of fed- 
ei-al Jurisdiction, admiralty and commercial law were not more 
facile in his grasp than the land laws of the United States and the 
civil code, on which so largely rest tlie land titles west of the Mis- 
sissippi. To him. also, is du(' the oi'ganization of the attorney- 
general's otiice into the [n-esent administi'alive department of jus- 
tice. It would not be sutlicient to say of our departed In'other that 
he did well in this highest [)Osition in our I'nion of a practising 
lawyer. lie did more : he won ri'iiown liy iiis ac(|uirements. his in- 
dustry and his facility of employing them. 

In 1857 he left public otiice and resumed private practice in the 
state and federal courts, and foi' neai'ly twenty-tive years carried on 
a practice so large as to tax even his wonderful strength, and one 
which involved the most >ai'ied knowledge that one lawyer was ever 
called to furnish for his clients" aid and })rotection. 

During both the administrations of Mr. Lincoln and Mr. John- 
son, the assistance of Mr. Cushing in the diplomatic discussions of 
public law by the State department wa.s often invoked and highly 
ap[)reciated. 

When i)ast seventy years of ;ige General Grant wisely selected 
him as one of the counsel ibr the United States on the occasion of 
the (Jeneva arbitration : and on his return nominated him for chief 
Justice ot the United States. Political reasons induced him to de- 
cline the nomination and subsequently to accept the mission to 
Spain, with which nation many complex (piestions had brought our 
government into very delicate I'ehitions. 

In 1877 he returned home, resumed the practice of law, and died 
with the harness on. retaining till the last his powers of mind unim- 
paired, and exercising them with an industry that never faltered. 

Ill this brief sketch of the l)rilliant career ol" this distinguished 
sou of our Commonwealth, culminating in the highest spheres of 
duty of his profession, we cannot, as members of that profession, 
fail to appreciate his allegiance to it. in that, while ever sensible of. 
and often yielding to the attractions of literature, statesmanship 
and diplomacy, his active mind, in Ms uiaVure vigor, found its oreat- 



IWITED STATES CIPCUTT COURT. 167 

est scope and most constant exercise in tiie [)i-actice of the law. 

His impressive oratory, conspicnons alike in his public life and at 
the bar. the large and varied attainments in literature, statesman- 
ship, diplomacy and law. which his discriminating- mind, extensive 
reading, retentive memory, unflagging industry, and an intellectual 
force which failed in its energies only with tlie end of a prolonged 
life, enabled him to accumulate and connnand, have stami)ed him 
as one of the most marked men of his country and time. 

We, his l)rethren at this l>ar, desire in this memorial to bear oni- 
testimony to his eminence and his worth, and to place this, oin- 
tribute, upon the records of this court. 



TJie Hon. Charles Levi Woodbury, who presented the report, 
spoke brieriy in eulogy of Mr. C'ushing's legal talent, choosing to 
give the other speakers an opportunity to speak ui)on his other 
<|ualities. He praised his kindness to the young members of the 
bar. and said no words could add to his fame as a jurist. He, 
also, spoke of the l)rilliancy of liis conversation, the variety of liis 
stores of knowledge*, and the great services he liad rendered in the 
state legislatuiv. to the jurisprudence of the conmionwealth. He 
i<'ferred to the regard liis fellow- citizens of Newburyport had always 
shown for his woith and usefulness, in frecjuently electing him to 
the legislature without regard to party lines, when in general 
politics he was with tlie minority. This fact was an h()noral)le 
monument of tlie courage and pul>lic spirit of Xewburyport, and 
and an eloquent eulogium on the private worth of General Cush- 
ing. 

General Benjamin F. Butler then said : 

Mk. Chaikman : — On occasions like the present, when appre- 
ciative friendship commemorates the services, and recalls with kind- 
ly thought the striking traits of character, of one Avhom it seeks to 
honor. I have \-ery often thought 

■■ The i)oor comniou words of couitesy 
Are such a very mockery." 

I therefoi-e crave indulgence if I deviate from the well-worn track 
to take the opportunity of giving expression to some of the peculiar 
traits of character, as shown in tlie course of the iirofessional life 
and pa1»lic services of Mr. (Jushing, as they have liecome known to 



168 MEMORIAL OF CALEB GUSHING. 

UK' through a fricudsliip ol" tlie duration of more than a generation. 

Tlie peculiarity of Mr. Cusliino- as a lawyer I deem to have been, 
that he was pre-eminently learned and great in one branch of the 
law, and most eminent in all. Other lawyers of his generation had 
some specialty in which liiey shone conspicuous over all; but, 
s|)e:iking in the hearing of those who know. I insist that it was his 
characteristic, that, while hv stood foremost of all -as learned in 
public laAV. he was equal to any in his learning in every branch of 
the law. A great English statesman made the charge upon our 
profession, that ''learning in the law narrow^ed the mind." If so, 
Caleb Cushing was most proudly an exception to that rule. In 
every department of belles-lettres, in acquirement of languages, in 
knowledge upon scientific questions, in acquaintance with history, in 
knowledge of ethnology, for thorough and intimate mastery of every 
branch of political science, he had no su[)erior, if even an equal. 

If called upon to give the leading idiosyncrasy of his character, I 
>liould sum it all up in tlie word •• loyalty ; " covering by that term 
personal fealty to friendshijjs, taithfulness to a fault in every ser- 
vice, professional or political, in which he was engaged, and, above 
all, loyalty to his country and her G-overnment. bearing true faith 
and allegiance to his State, always sul)servient to his higher and 
l)i'oader obligation to the United States. As her citizen he held in 
iiigh honor the Connuonwealth of Massachusetts. No more elo- 
(juent or worthier tribute has ever been paid to Massachusetts than 
fell from his lips in early life in his first appearance in the Congress 
of the United States. 

Not blind to what he deemed her faults, — ever tender of them, — 
he w'as eagle-eyed to discover and eager to point out her virtues. 
But to the Government of the United States, to the whole country, 
he bore, if I may so ex[)ress myself, a higher and holier allegiance. 
To him the fiovei-nment of the United States Avas an entity. It 
mattered not who administered her affairs : he served his country 
with equal fidelity, whethci' those charged with the execution of her 
government were political friends or foes. To him the (Government 
of the Ignited States, using his ow^i words, was a •• fixed fact;" 
and he evi'r strove to serve his Government, irrespective of the per- 
sonal (|ualities of the men who for the time being exerted its powers. 
Like the Highlander wdio sacrificed, one after another, his nine 
brave sons to cover the cowardice of his chieftain, so Mr. Cushing 
Avas ever nsady to give up everything to serve his Government, 
however much he was opposed to the idiosvncrasies of those at the 



UNITED STATES CIRCUIT COURT. 169 

head of it. This was seen in his treatment of John Tjler's admin- 
istration ; and this trait of his character caused the careless and un- 
thinking not unfrequently to misunderstand his acts and impugn 
his motives. 

Men. and great men, liave ofttimes used their mighty powers to 
thwart the purposes and eml)arrass the action of administrations to 
which they were politically opposed. Not so with Mr. Gushing. 
Never assuming that any man whom the people had vested with 
the administrati<^n of tlie government could wish to do aught but 
what might redound to the unity and prosperity of his country, Mr. 
Gushing, from the very bent of his mind, sought opportunity and 
found reasons for supporting ever}' act of Government. 

This trait was as fidly illustrated as in any epoch of his life when 
he served as the law officer of the Government during the adminis- 
tration of President Pierce. Learned lawyers, astute politicians, 
and in some instances profound statesmen, had occupied the posi- 
tion before him ; and until he took the office the Attorney-General 
was in the habit of accepting retainers to argue private cases in the 
Supreme Court. He put an end to that custom. Devoting the 
whole energies of his nature, his untiring industry, and great ca- 
pacity, to the service of his chief, who, in his eye, was the Pres- 
ident of the United States only, and his superior, he raised the of- 
fice of Attorney General, and organized it to be in truth and in fact 
a department of the Government, and the Department of Justice. 
His knowledge of atfairs, his great learning, pervaded and became 
an aid to ever}' portion of the administration. It is no discredit to 
tlie statesman who ^ere in the cabinet, to say that they all relied on 
him. 

How thoroughl}' this was so. will be seen in the three volumes of 
his opinions, which contain a body of public law, a series of discus- 
sions upon every possible question of administration and every 
l>ossible relation of the Government to the people and to the States, 
which is nowhere equalled since Bacon in thoroughness of argu- 
ment and scope of knowledge. Nor do Mr. Gushing's labors all 
appear in these volumes. He aided the Secretary' of State, Marcy, 
— than whom none was greater, — in defining our relations of neu- 
trality as between Russia and Great Britain, and laid the founda- 
tion of that code of laws which should govern neutrals, which ^ears 
afterwards stood for so much when we claimed b}' the treaty of 
Washington reparation for the violation of neutrality by Great 
Britain in the war of 1861. Mr. Gushing Avill l)e found to have 

22 



170 MEMORIAL OF CALEB CUSHEN^G. 

systematized the adiiiinistratioii of our laws in relation to our publie 
lands, especially in that most difficult part as applied to territory 
newly acquired froiii Mexico. 

The unity of a President and his cal)inet preser\ed during an en- 
tire administration is thought to be a desideratum. The cabinet of 
President Pierce has the merit of having been the first and only one 
which did not change in its personnel during its four j'ears of ad- 
ministration. 

This result, as 1 hapi)en to know, was dut'. in one instance at 
least, not only to the executive^ tact and grace of the President, 
but largely to the patriotism, Uie good sense and the judici()us ac- 
tion of Mr. Cushing. in delinitely settling, in one of his exhaustive 
opinions, the line of demarcation I)etweeu tlie rights, powers, and 
iluties of the Secretary of Wai- as a civil officer, and of the gen- 
eral of the army and liis suliordinates as military officers. 

Lieut-Gen. (Scott, the concpieror of Mexico, tlie candidate against 
Gen. Pierce for the office of President, during his administration 
connnander of the armies of tlie United States, claimed for himself 
and liie officers of the army extended powers and rights in the con- 
duct of the army and military subjects, whicli Mr. Davis, the Sec- 
retary <jf War, as a civilian, refused to recognize. The conflicting- 
claims of these high otlicers put President Pierce in a very delicate 
l)osition in deciding the questions in difference between them. It is 
a matter of well-knoAvn liistory, that, on account of what Jefferson 
Davis believed to be the unfair and very sellish treatment of Gen. 
Taylor in the Mexican war by Gen. Scott, — treatment which Davis 
conceived went to the extent of taking troops away from Taylor in 
order that the latter might reap no laurels from his attempted over- 
land march to Vera Cruz by way of Buena Vista, — Mr. Davis be- 
came violent and hostile in his relations with Scott. It is also mat- 
tei- of hislory. that the accounts of Scott, while the latter was in 
command in Mexico, were not satisfactory to the accounting-offi- 
cers of the treasury, and were not passed during the administra- 
tions of Polk, Taylor, or Fillmore, but were left as a legacy' to the 
administration of Pierce. It was probably this hostility betw^een 
Davis as Secretary of War, and Scott as general-in-chief, which in- 
duced the latter to ask tliat his headcpiarters might be in New York ; 
which re(i[uest was granted. Out of these things and other things, 
came a most bitter but v(>ry clever correspondence between Davis 
and Scott, which was printed at the time, and which quite rivalled 
the celebrated Marcy-Scott controversy. MeauAvhile the Mexican 



UNITED STATES CIRCUIT COURT. 171 

accounts of Scott and other administrative questions came before 
Pierce on a sort of appeal, and he referred a part to Attorney-Gen- 
eral Gushing for his advice ; and upon that advice, when received, 
the President decided to act. This so anno^-ed Mr. Davis, that he 
tendered his resignation, which Pierce promptly accepted ; but, on 
the intervention of Mr. Dobbin, the advice of Mr. Gushing and the 
action of the President were seen by Mr. Davis to be so just, that 
lie asked to withdraw the resignation. 

From the time Mr, Gushing left the office of Attorney-General, in 
in 1857, he has never ceased to be the called-for and chosen ad\d- 
ser of ever}' successive administration, down to the present, in diffi- 
cult questions of internal policy or foreign relation. We can see 
proof of this, as we refer to other and later acts of his life. 

Mr. Gushing foresaw very earlj^ the necessary' and inevitable result 
of the agitation of the slavery question in the disruption of the Union. 
Although humane and kind-hearted to a fault, yet the wrong done 
to the slave touched him not. And why? He saw clearly that the 
bonds of the slave could not be broken unless the ties which bound 
his coiuitry together as a nation were to be severed. If that was to 
be the dire result of the liberation of the black man, what was slavery 
weighed in the other scale ? By his loyalty to the countrj^, he sat- 
isfied his conscience and his judgment that it was better that hun- 
dreds should perish in slavery, if need be, rather than that his coun- 
try should be dismembered and destroyed, or thousands die to save 
it. He believed that in the unity of the country was the hope of 
mankind for free institutions and free government. If the Union 
was destroyed, and our s^'stem of government failed, — he believed 
it must fail before slavery could be 'eradicated, — then, to him, all 
was lost. 

To use his own words, which I may also quote in another place : 
'• I have no desire to survive the overthrow of the Government of 
the United States." Nay, more : he believed further that slavery- 
could not be eradicated without war ; and he believed that the re- 
sult of such a war would be to establish imperialism ; and he gave 
voice to that belief in Norfolk, when he uttered that which has now 
become an idiom of our language, ''The march of the man on 
horseback." Is it quite certain that this belief was not prophetic, 
and such will not l)e the secondary- effect of our great war? 

May we not thus well see, that with this habit of thought, believ- 
ing all this, seeing it so cleai'ly that he may be said to have known 
it, — can we not understand how a just, Idnd-hearted Christian man, 



172 MEMORIAL OF CALEB GUSHING. 

in the choice of two evils, said in his lieart, " Better slavery, great 
as its evil, than to fly to ills we know not of? " 

In 1860, therefore, his only political thought was, How can the 
Union of the States be i)reserved, and the Government perpetua- 
ted? and how can war be averted? for. with the last, the de- 
struction of the others nuist surely come. To attain this end. ev- 
ery concession must be yielded, every sacrifice must be made. 

To accomplish this, he went to Charleston in lS(j(), and presided 
over the convention of the Democratic party for ten successive days. 
He saw, with unutterable anguish, the delegates of six of the cot- 
ton states secede from that body. If that secession went on, war 
was inevitable ; and his thought, and that of those who acted with 
him was. What can be done to bring these states back? A rapture 
of the Democratic party was a mixture of the Union. An adjourn- 
ment to Baltimore was carried ; but, when the convention re-assem- 
bled there, tlie places of those seceding delegates were filled by men 
elected subsequently to the adjournment, and who wholly misrepre- 
sented the feelings of their States ; and the convention divided, and 
two candidates for the Presidency were put in the field by the Dem- 
ocratic party, in two factious. The rest is history. 

In December, 1860, after the election of President Lincoln, when 
the commissioners from South Carolina came to Washington to pre- 
sent the ordinance of secession, Mr. Cushing deemed war a certain 
event. On the 23d of December of that year, with two or three 
personal friends in Washington, the certainty of the approach of 
war was discussed ; and one of those friends turned to myself, and 
said. '-Well, Gen. Butler, you are a general in the Massachusetts 
militia, and if the war comes 3'ou will have to go. You had better 
resign your commission uoav." — " No, general," interposed Mr. 
Cushing, "certainly not ; it maybe that to the military organiza- 
tion of the North the country will have to look for its safety." 
Then, lost in thought for a moment, he looked up and said, "What 
would one give to know which subaltern of the United States army 
will be the next President ol" the United States?" From that hour 
he took Init one part in pul)lic affairs, and that against his own 
judgment at the request of others. Mr. Cushing made a journey 
to (jharleston at the request of the members of the Supreme Court, 
to do what he might to stay the tide of secession until better and 
wiser counsels could prevail. This patriotic effort was misrepre- 
sented by the press ; and it was charged and believed that he went 
to South Carolina to give advicu; in the interests of reI)elliou. 



UNITED STATES CIRCUIT COURT. 173 

Sumter surrendci-ed on the 15th of April, 1861. On the 24th of 
April, at a flag-raising in Newburyport, in the presence of his ^fel- 
low-citizens, Mr. Gushing made a speech, from which I abstract the 
following paragraph : — 

'He had before him the question which had occurred to public men in 
other countries when political convulsions divided friend from friend, and 
brother from brother, and sometimes ari-ayed them against one another in 
hostile camps and In deadly strife. What, in such a case, is the dictate of 
duty? Should we retire Into safe seclusion In a foreign country, to return 
in better times, to wear the honors of freedom, like Hyde? or should we re- 
main to affront the perils of our lot, like Falkland or Vane? The latter 
course, if not the safer one, is at any rate the more courageous one. He [Mr. 
Gushing] chose so to act. He was a citizen of the United States, owing al- 
legiance to the Constitution, and bound by constitutional duty to support its 
Government, and he should do so. He was a son of Massachusetts, attached 
to her by ties of birth and affection, and from which neither friend nor foe 
should sever him. He would yield to no man in faithfulness to the Union, 
or in zeal for the maintenance of the laws and the constitutional authorities of 
the Union; and to that end he stood prepared, if occasion should call for it, 
to testify his sense of public duty by entering the field again, at the com- 
mand of the Commonwealth or of the Union. 

Acting upon the same patriotic impulse, lie wrote a letter to Gov. 
Andrew, which I transcribe : — 

Neavbukypout, 25 April, 1861. 
Sir,— I beg leave to tender myself to you in any capacity, however humble, 
in which it may be possible for me to contribute to the public weal in the 
present critical emergency. I have no desire to survive the overthrow of the 
Government of the United States. I am ready for any sacrifice to avert such 
a catastrophe, and I ask only to be permit ted to lay down my life In the ser- 
vice of the Commonwealth and of the United States. 

I am very respectfully, 

C. Gushing. 

His Excellency John A. Andrew, Governor of the Commonwealth. 

This official communication was accompanied liy an unofficial let- 
ter, in which he called to the governor's mind tlie political differen- 
ces betw^een them, but that now all political questions were buried, 
iu view of the raging war. 

Were ever sentiments of purer patriotism uttered or written? 
Was ever a more generous offer of great capacity, of untiring indus- 
try, and of full allegiance botli to his State and nation, with desire 
to lay down his life iu the service of either, made by mortal man? 

Was this any new position, in time of war, for Gen. Cushing to 
take? On the Sth of January, 1847, when speaking of the duty of 



174: MEMORIAL OF CALEB GUSHING. 

Massachusetts men as to another war tlien raging, and urging that 
the Coninionwealth should take part on the side of the country, Mr. 
t'usliing said. — 

" Parties iiiay play with public affairs in time of peace, and agitato iii)on 
tliis or that trivial question of the day; but when war comes, parties cannot 
stand before it; in its irresistible marcli, it crushes them like a tornado tear- 
ing its pathway througli the forest. It absorbs, controls, dominates, all the 
passions and emotions of men and of nations." 

Have I not well said that the characteristic trait of Mr. Cusliing 
was loyalty to his country. 

All remember the answer of Ciov. Andrew, — in substance that 
Massachusetts had no plact-, in council or in field, for such a man 
as Caleb Gushing. 

That answer was cruel; but not now is the time, or here the 
place, to aninnidvert upon it or apologize for it. 

How ^^r. Cushlng regarded it, you may see from a letter written 
at the time to a life-long iViend : — 

NiiWUUUYPORT, 2 May, 1861. 

Dkau Siu, — Tiie Governor's letter is merely insulting. It is in the spirit 
of the atrocious acts proposed in New York and Boston, which imply the 
utter barbarism of the whole North. This letter relieves my conscience of 
the sense of public duty in virtue of allegiance. I am reflecting on passive 
probabilities, remaining in Massachusetts to meet the worst, an exile, or emi- 
gration to California or the Xorth-west. 1 have been very l)usy, assorting 
and liliug jiapers fur any emergency, and am now i>retty nearly ready. 

Yours, C. C. 

The effect was not to cause (hishing to swerve one hair in his 
loyalty to the Government of the United States. With many men 
it might have been different. 

In the autunm of LsGl wiser counsels prevailed, at least in the 
administration of the Govermnent of the United States; for Presi- 
dent Lincoln himself authorized the recruitment of a Division in 
New England, and otlicered it by an order under his own hand, the 
majority of the commanding ollicers of which had been associates 
of Mr. Gushing in the Gharlestou convention, and nine-tenths of 
whose men had voted with him at the polls against Mr. Lincoln. 
I'his Division was specially designated for operations in the Gulf 
Slave States at the mouth of the Mississii)pi. 

In tliat hour of deadly peril, woidd it have been well to have 
dri\im away from the service of the United States every Democrat 
who had preferred the unity of the country to the extinction of 
slavery? That (luestion, historv has answered. 



UNITED STATES CIRCUIT COUKT. 175 

While this Division was organizing, came the seizure of tlic 
British mail-steamer '• Trent," b}- Capt. Wilkes, and the capture 
therefrom of Mason and Slidell, the Confederate ambassadors to 
England and France, with their retinue. This capture raised very 
grave questions of intei-national law between this country and Great 
Britain, whether this act of Wilkes could be justified by his Gov- 
ernment. 

Upon this question the opinion of Mr. Gushing was asked, first 
by Mr. Secretary Seward, and second by the merchants of New 
York, through the mayor of the city, l)ecause its solution had an 
important ])earing upon their commercial adventures. I have be- 
fore me a printed copy, bearing date Nov. 29, 1801, of the opinion 
to the merchants of New York. I myself carried tlie opinion of 
Mr. Gushing — in which he paid me the great com[)liment to ask 
me to unite — to Washington, and read it to Mr. Seward. His re- 
pl}' was : " You gentlemen are doubtless right in your law ; but I 
shall be obliged to send back Mason and Sliddell, notwithstand- 
ing." 

That opinion. I doubt not, may be found among the papers of 
the case in the archives of the State Department. 

Well and vigorously reasoned, supported by copious quotations 
from leading writers of international law, and jurists, especiall}- 
those of England, including Lord Stowell and Philimore, that opin- 
ion was most emphatic and decided, that Wilkes not only should 
be justified by our Government ; but, further, that we were entitled 
to hold the rel)el ambassadors, and England had no just cause for 
complaint. I take leave to quote a few of the closing sentences 
from Mr. Gushing's opinion to the merchants of New York : — 

" Those gentlemen, when brought within the jurisdiction of the United 
States, ;ire sul)ject to be dealt with as prisoners of war, or they may be pro- 
ceeded against for treason, as Mr. Laurens was; but they could not be dealt 
witli by us in either of tliose capacities while they were on board ' The Trent.' 
We are to find a I'eason to justify their personal arrest while there. We have 
that sufficient reason, I think, in the fact that they were diplomatic ministers 
of the government of the insurgent States, commissioned as such, and as such 
destined for Great Britain and Fiance. That is the simplest expression of the 
case, and, in my opinion, the true and only tenable ground on which to main- 
tain the act of Capt. Wiil<es. 

"To conclude, tlieu: In my judgement, the act of Capl. VViikes was one 
which any and every self-respecting nation must and would liave done by its 
own soveieign riglit and power, regardless of consequences. It was an act 
which, it cannot be doubted, Great Britain would have done under the same 



176 MEMORIAL OF CALEB GUSHING. 

circumstances. At the same time, it was an act amply justified by the prin- 
ciples and doctrines of international jurisprudence. We may well regret that 
occasion for the act has occurred, and that the seizure needed to be done 
from on board a vessel, and still more a mail packet of Great Britain, with 
whom, for all possible; reasons, we desii-e to continue on the footing of cordial 
amity. But, Messrs. Mason and Slidell not having been embarked on board of 
' The Trent,' by the British Government, that Government, as such, has not 
been offended by the seizure. ' The Trent,' her officers acting on their own 
responsibility, would have no innnunily from the ordinary laws of war, which 
affect the vessels of a great power equally as of a small one ; and Great Britain 
cannot fail, I think, to perceive that, as no offence was intended to her in the 
matt(;r, and as rights of belligerency were exercised by Capt. Wilkes in the 
most moderate form, without seizure of the mails, without bringing in as prize, 
without injury to private property, her national pride and her national honor 
conspire to dictate the amicable construction of this act of sovereignty and 
belligerent right of the United States." 

But alas for the trutli of history ! Eighteen years have not 
passed nway since that most imi)ortant opinion was given ; and the 
sod Avas not yet green over the grave of its author, when I find, in 
a memorial prepared in behalf of the meml)ers of the Bar Associa- 
tion of Mr. Cushing's native county, Essex, in commemoration of 
his services and character, which was entered upon the records of 
the Sui)i'eme Court of Massachusetts, the following sentences : — 

"The 'Trent' affair was an early incident of the civil war. The capture 
of the Confederate citizens was the subject of general gratulatiou. Mr. Gush- 
ing advised at once that they could not be held, but must be siUTendered 
upon the British demand. That judgment prevailed, and was carried into 
elfeet by a despatch, to the writing of which he contributed, but its entire 
authorship is not to be ascribed to him." 

I cannot hope that this feeble tribute of my friendship to this 
great i)ublicist will find a place upon the records of this Circuit 
Court of the United States ; but I will take care, with the leave of 
the court, that a copy of it will find place among its files, so that 
at least the court in one circuit of the United States in which Mr. 
(Jushing so largely practised may have the benefit of his opinion 
when, hereafter in another Avar, the same question may be put in 
issue. 

President Lincoln, appreciatiug this exhibition of loyalty and de- 
sire to serve his country on the part of Mr. Cushing, at the request 
of the general conunanding. appointed Mr. Cushing as a brigadier- 
general of volunteers, and assigned him to duty in the Division then 
being recruited, of which I have spoken ; but subsequently with- 
drew his name from the Senate by the inspiration of the Governor 



UNITED STATES CIRCUIT COURT. 177 

of Massachusetts, who was not then friendly either to tlie com- 
manding general or the prospective brigadier, upon the suggestion 
that, such an appointment would be a reflection upon him for ha\dno- 
refused the services of Gen. Gushing earlier in the war. 

I pass over Mr. Cushing's distinguished services to the Govern- 
ment in connection with the Washington treaty, the most distin- 
guished part which he took before the great tribunal of arbitration 
at Geneva, where he alone of all the counsel employed by ])oth na- 
tions could speak to that august body in a language which all the 
judges could understand and fully comprehend ; for these are all 
matters of written and undisputed history, and my aim is only to 
set history right as far as I know it, so that his loyalty to' his 
country may more distinctly appear, and that his character may be 
fully disclosed, and that all who chose so to do may know them. 

Upon the occurrence of a vacancy in the office of chief justice ot 
the Supreme Court of the United States, President Grant tendered 
the nomination to that high office to -Mr. Gushing as a tribute to his 
great services to the country as its legal adviser. 

Of his fitness for that office, save the possible disqualification ot 
age, no question was raised ; for Mr. Gushing had held with high 
honor a place upon the supreme bench of Massachusetts, upon 
which, as we know, there ever have been and are now men emi- 
nently fit to take such position in the Supreme Court of the United 
States. 

Opposition arose to the nomination in the Senate, led by a sen 
ator from the Pacific slope, who had formerly, as a boy, been. a 
printer in a newspaper office in Newburyport, and held some griev- 
ance. The sole ground of opposition was the fact that Mr. Gush- 
uig, early in the spring of 1861, had written a harmless letter of 
introduction of a former clerk in his office, who belonged in the 
South and who was going back there, to the President of the Con- 
federate States. This letter, if it had been published when it was 
written, would never have caused a passing thought; but Mr. 
Gushing, sensitive to any possible ground of opposition, wrote to 
the President to withdraw his name, which was done, and he re- 
mained in the lucrative practice of his profession, the annual re- 
ward of which was four times the salaiy of the office to which he 
was named. 

I have to apologize for the time I have taken ; but I have to do a 
service to the country by placing before the court in a true light the 
services and traits of character of one of its greatest advocates and 

23 



178 MEMORIAL OF CALEB GUSHING. 

ablest jurists ; and I have been impelled so to do by a sense of duty 
to the friendship which this great man has for man}' years bestowed 
upon me, and only desire to add, with the deepest sensibility of re- 
gret, Would that what I say were worthier of the man ! 

On motion of Hon. Charles Theodore Russell the resolutions 
were unanimously adopted, and were directed to be presented to 
the Circuit Court through the United States Attorney". The meeting- 
then dissolved. 



The Circuit Court immediately opened, Judges Lowell and Nel- 
son taking their places on the Bench. 

Hon. George P. Sanger, United States Attorney, then read the 
resolutions of the Bar, aiid moved that they be spread on the records 
of the Court. 

Judge Lowell replied, saying that tlie elaborate resolutions ottered 
l»y the committee on the life, attainments and career of Caleb Cush- 
ing left but little for him to add. The law was but one of the pro- 
fessions in which his extraordinary- abilities made a marked suc- 
cess. He highly praised the opinions delivered by Cale'b C'ush- 
ing while on the bench. His services in the judiciary depart- 
ment at Washington he thought of the highest order. He men- 
tioned especially his reorganization of the office, putting it substan- 
tially upon the foundation of a Department, thougli it did not 
assume that name until afterwards ; and citing several opinions upon 
constitutional and international questions, such as, the respective 
powers of Congress and of the Executive, the foreign enlistment 
act, and others. His eminent abilities and services to his country 
would ever entitle him to the respect of his brethren at the bar and 
his fellow-citizens. 

The Court, cordiall}' concurring in the resolutions, ordered them 
to be entered upon the records. 



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